DPP v Gallagher

(ii) Charge 2, at Leongatha on 18 November 2019, without lawful excuse, you recklessly engaged in conduct that placed Gloria Strickland[3] in danger of death, namely deliberately steering into another vehicle while driving over the speed limit.

2 Charge 1 is the offence of culpable driving causing death and carries a maximum penalty of 20 years' imprisonment.

3 Charge 2 is the offence of reckless conduct endangering life and carries a maximum penalty of 10 years' imprisonment.

4 Exhibit P1 is the Prosecution Plea Opening dated 8 April 2021. Dr Fitzgerald, who appeared on your behalf, accepted the matters set out in exhibit P1 as forming a proper basis for sentencing.

5 On 18 November 2019, at approximately 3.14am, you were driving a Holden Barina on the South Gippsland Highway, Leongatha. You veered onto the incorrect side of the road and collided in an 'offset side swipe-type' collision with a Ford Territory travelling south.

6 Tim Strickland was driving the Ford Territory with his wife, Gloria Strickland, in the front passenger seat. Mr Strickland, who was 79 years of age at the time of the collision, suffered fatal injuries and died at the scene. Mrs Strickland, who was aged 74 years, sustained minor injuries as a result of the collision. She was airlifted to Melbourne as a precaution and was discharged from hospital the following day.

7 You were 17 years old at the time of the collision, just one week short of your 18th birthday. You were the holder of a Victorian Learner's Permit.

8 As a result of the collision, you suffered serious injuries and were airlifted to the Alfred Hospital, where you spent a number of weeks being treated.

9 The car you were driving belonged to your mother. It was mechanically inspected by investigators and found not to have any faults or failures that would have caused or contributed to the collision.

10 At the point of collision, the South Gippsland Highway was a two-lane, two-way bitumen carriageway in a good state of repair. The road orientation was north-south, and the collision occurred approximately mid-way on a downhill gradient for southbound traffic. The applicable speed limit was 100 kilometres per hour. The north and southbound lanes were separated by parallel solid white lines down the approximate centre of the road. The centre dividing lines were approximately one metre apart, and tactile line markings ran down the inside of both of these lines. Yellow reflective "cats' eyes" were positioned at regular intervals within the wide centre dividing strip between the tactile line markings. The road was long and straight south from the crest of the rise. There was good road and lane delineation and excellent forward vision in both directions.

11 Mr and Mrs Strickland were returning home from a trip to Perth. They arrived at Melbourne Airport just after midnight on 18 November 2019, collected their car, and commenced their drive home.

12 On 15 November 2019, days before the collision, you cut your wrist with a knife in the bathroom at your home address. You then sent photographs of your injury to your former girlfriend via a text message. You and she had been in a relationship for approximately 18 months. She ended the relationship approximately a week and a half prior to the collision.

13 You had been planning to travel to Wilson's Promontory with a group of friends from your Year 12 class on the 18th November as a "schoolies" end of year trip. Plans had been made for you to be collected from your home address by a friend, Harry Owens,[4] on that morning. A group of girls from the same year level, including your former girlfriend, had also arranged to attend the schoolies trip at Wilson's Promontory.

14 You spoke to Mr Owens by telephone on Sunday, 17 November 2019 and later communicated with him via the Snapchat mobile phone application. While initially in good spirits, your mood worsened over the course of the night as conversation turned to your former girlfriend. You spoke of lacking self-worth and, despite being reassured by Mr Owens, your mood deteriorated. At 11.24pm that same evening, you telephoned Lifeline. At 11.36pm, you called Beyond Blue. Between 1.30am and 2.00am the following day, you sent Mr Owens a Snapchat image of the dashboard of the Holden Barina showing the speedometer at zero. You then sent a message to him stating "I can't do this anymore" and "everybody hates me".

15 Approximately 15 minutes later, you sent a further photograph to Mr Owens showing the speedometer of the Holden Barina sitting just below 200 kilometres per hour. Mr Owens was able to check your location via the Snapchat map. This showed you were travelling towards Koonwarra from Leongatha.

16 Following the picture messages, you sent Mr Owens further messages stating, "I don't want to be here anymore," "I just want to crash," and "I'm going to do it".

17 You also sent Snapchat messages to Mr Owens about wanting to drive into a tree and into other cars. At 2.40am, you sent a message to your friend, Nathaniel Pope,[5] stating "Nathaniel, man, I love you man, don't forget that. You're gonna hate me for what I did but it was to (sic) much for my head."

18 At about the same time, you wrote to Jason Bryan "Jason man, I love u. I'm gonna miss you".[6]

19 At 2.41am, you sent a message to Isaac Stewart stating,[7] "Isaac man, I love u man, everything just got to me."

20 You also sent a screenshot to Mr Owens of the messages you sent to Pope, Bryan and Stewart.

21 At approximately 2.50am, Mr Owens received a further message from you stating, "Goodbye mate, tell Danielle[8] I love her".[9] You were near the scene of the collision when you sent that message.

22 As stated, Mr and Mrs Strickland were travelling south along the South Gippsland Highway and were on the downhill gradient. At this time, you were travelling north at a fast rate of speed. In her statement, Mrs Strickland stated:

"Tim was gradually increasing speed to the speed limit. I was aware that there were headlights oncoming and they seemed to be on the correct side of the road. ... I reckon the lights were about 15 metres away when I first saw them. All of a sudden, the lights seemed to change direction slightly and came straight towards us. Then there was a huge bang, like a small explosion and the car was then thrown around like it was rolling."

23 You made a sudden and deliberate steering turn to the right, causing your car to travel across the wide centre dividing strip and onto the incorrect side of the road. The front of your car collided with the driver's side of the Ford Territory in the vicinity of the front driver side wheel and a pillar in an offset side-swipe type impact. The impact occurred wholly within the southbound lane. The driver's side front wheel and assembly, and the driver's door, were ripped from the Territory on impact. The impact caused the Territory to rotate in a clockwise direction and onto the eastern grassed verge. The Territory then tripped and rolled, and came to rest passenger side down approximately 24 metres south-east of the impact area.

24 Your car, the Barina, rotated laterally in a clockwise direction as a result of the impact. The engine was torn from the car during impact and subsequent lateral rotation, and came to rest within the southbound lane approximately 38 metres north-west and uphill of the area of impact.

25 Detective Sergeant Dr Jenelle Hardiman, a collision reconstructionist, attended the scene and conducted an analysis of what occurred. She reached the following conclusions:

(i) Between 1.5 and 5 seconds prior to the collision, your accelerator pedal position was at 99 per cent of its maximum.

(ii) Two seconds prior to the collision, pressure was removed from the accelerator.

(iii) The Holden Barina was travelling north on the South Gippsland Highway, Leongatha, when it crossed onto the incorrect side of the road and into the path of the Ford Territory. The driver of the Ford Territory responded by steering left. When the two vehicles collided, your car was about 2.1 metres onto the incorrect side of the road and travelling at 141 kilometres per hour. At impact, the Ford Territory was travelling about 87 kilometres per hour. There is no evidence that your car was out of control prior to impact.

(iv) The collision occurred 1.6 to 2.1 metres into the opposite lane to that in which you were driving.

(v) There was not a significant overlap between the vehicles at the time of impact.

(vi) It would have required very little input to turn the vehicle while travelling at such a high speed.

26 You were not interviewed about the circumstances of the collision.

27 The prosecution case, which is not disputed, is that while trying to cause harm to yourself, you drove recklessly in that:

(a) you drove at 141 kilometres per hour in a 100 kilometres per hour zone;

(b) you made a deliberate steering input into the oncoming Territory.

28 Exhibit P2 is a Victim Impact Statement of Gloria Strickland. Mrs Strickland read her statement in open court.

29 In what may be considered a very generous gesture, Mrs Strickland states she realises you were suffering on the night of the collision and not in a position to think clearly. She further states:

"My feelings towards him are of sadness that a young person can get into such a state and there is not enough support for them. I hope he has had treatment and would be able to help others instead of spending time in jail.

Our family would also like for him to apologise for his actions on that night and hope he knows his actions have caused so much pain and loss."

30 Mrs Strickland speaks of her life crashing down on 18 November 2019. Following the sudden explosion of noise and the sound of metal crunching around her, she called out to her husband to see if he was okay. There was no answer. She states that her husband's hand fell onto her lap, she grabbed his hand but could not feel a pulse. On her journey to Melbourne, by air ambulance, she came to the realisation she would not see her husband, of 52 years, again. It is clear from her impact statement that she and Mr Strickland, along with their children and extended family, had a very close relationship.

31 Edward Strickland[10] is the eldest son of Mr and Mrs Strickland. He also read his statement to the court. He described the phone call received in the very early hours of 18 November from a MICA paramedic as a phone call that would change his life forever.

32 Edward Strickland stated that the impact of his father's death, the funeral and the months waiting on court hearings, have taken a toll on his mental health. He has experienced significant trouble sleeping and focusing on his business and personal life. Mr Strickland stated:

"I know that no matter what sentence is imposed that it will never bring Dad back to us and no sentence will ever truly reflect the value of his life to me, my family and our local community."

33 The above summaries do not do justice in expressing the profound impact your conduct has had on the lives of Mr and Mrs Strickland, their children, grandchildren and extended family.

34 You were born in Delhi, India in 2001 and are now 19 years of age. You live with your mother and younger sister.

35 At the age of five, you moved with your parents to the Republic of Ireland as your mother had an opportunity for better employment as a nurse.

36 Your parents separated approximately one year after the move to Ireland.

37 Both you and your mother were victims of your father's physical and verbal abuse. You report having been hit with objects such as a stick and a belt, having been kicked and thrown downstairs. Your mother was also subjected to your father's violence, including threats to kill her. You have had no real contact with your father since he and your mother separated.

38 When you were aged 10 or 11, you moved to Australia with your mother and younger sister. You settled in the South Gippsland area where your mother continued her career in nursing. You completed Year 12.

39 With the exception of some work at a local supermarket, you have not had any meaningful employment since leaving school.

40 During your school years in Australia, you encountered your first experience with racism which proved challenging. You otherwise did reasonably well at school and were a keen sportsman.

41 Following the successful completion of your secondary schooling, you received offers for courses in physical education and radiography. It would appear that much of your life has been put on hold following the collision.

42 You suffered serious injuries as a result of the collision. The Discharge Summary from Alfred Health, Exhibit D4, details the injuries you sustained. In summary, they are as follows:

43 You underwent a number of operations to repair the injuries suffered, including a splenectomy. You were eventually discharged on 20 December 2019.

44 You continue to be troubled by a number of your injuries for which you take medication. You will be on medication for the rest of your life as a result of your spleen having been removed. You have regular psychological sessions with

Mr Jason Crestani, as well as weekly physiotherapy. You are prescribed 30 milligrams of Fluoxetine for depression and melatonin to assist you to sleep. I was informed that whilst you are able to walk, you are not at a point where you are able to run and participate in sport.

45 It was submitted, and the evidence shows, that it was your intention to commit suicide when you steered into the path of the victims' car. The background to your offending is set out in a number of psychological reports that were tendered on your behalf.

46 You were assessed by Dr Michael Davis, consultant forensic psychologist. Reports from Dr Davis dated 1 September 2020 and 19 May 2021 were tendered on your behalf.

47 Turning to his first report, you told Dr Davis you have had two relationships. The main relationship commenced at the end of Year 10 and continued until the end of Year 12. Whilst Dr Davis noted that file information suggested the relationship ended because you were unfaithful, you told Dr Davis you had not in fact been unfaithful but were taken advantage of by another female. You said you would rather "be seen as a cheater than someone who'd been taken advantage of". When asked if it was devastating to break up with your girlfriend, you replied "It hurt, but it felt like (you) were dealing with other stuff, it wasn't the biggest thing." You explained you were dealing with "PTSD from a female student hitting you" and you were struggling with that.

48 You told Dr Davis that if someone hits you, such as the girl at school did, you experienced nightmares and flashbacks of your father's abuse. Similar flashbacks occur if you see particular brands of beer which remind you of your father.

49 You told Dr Davis you first experienced suicidal thoughts at the start of Year 12. You had suicidal plans involving driving a car into a tree. You described three incidents of harm in the year leading up to your offending. You reported having consumed approximately 200 tablets of magnesium at the start of 2019. You thought that had to do with thoughts concerning your girlfriend.

50 On another occasion, you attempted to overdose on Paracetamol tablets. Your mother took you to hospital after she learned of what you had done.

51 The third occasion occurred approximately two to three days before the offending and involved you cutting yourself. You said you did not think you intended to die from that behaviour but did so to relieve your emotional pain. You told Dr Davis you sent a picture of your cut wrist to your former girlfriend because she used to cut, and so she would understand that you were hurting badly. You have not engaged in any suicidal behaviour since the incident before me.

52 Your mother confirmed to Dr Davis that you were having difficulties going to school and with your girlfriend from the beginning of 2019. According to your mother, you lost interest in your studies, were agitated and angry.

53 You reported to Dr Davis that you do not recall the incident or the day before the incident. You had been shown the messages you had sent to friends and felt like you knew what would have happened. You said you would not have wanted to "take someone else, just (yourself)."

54 Dr Davis administered the Paulhus Deception Scales Test (PDS) and the Personal Assessment Inventory Test (PAI). Given some level of distortion in the tests,

"other tests were interpreted with some caution as Mr. Gallagher's responses may under-represent the extent and degree of his difficulties, particularly in regard to social and moral matters."

"Mr. Gallagher's PAI responses suggested prominent difficulties with depressed mood, anxiety, prior traumatic events, physical health concerns, some confusion, and some developing maladaptive personality features."

56 Dr Davis also administered the Trauma Syndrome Inventory-2 (TSI-2) test. The results of the TSI-2 test indicated you have a large number of post-traumatic symptoms and difficulties, particularly in regard to post-traumatic stress, self-disturbance, suicidality and depressed mood.

57 On the HARE Psychopathy Checklist - Revised Test, your score was in the very low range. The results indicated you are not psychopathic and do not possess personality features associated with offending of a particularly callous or predatory nature.

58 You were also administered the Level of Service/Risk, Need, Responsivity test. Your total score was in the very low range of risk and need. The results indicated your risk for general criminal recidivism is considerably lower than that of the average offender. It was Dr Davis' opinion that you pose a low risk for general criminal recidivism.

59 Dr Davis considered you suffered from untreated symptoms of post-traumatic stress arising from the physical and verbal abuse of your father until the approximate age of six and a half years, and also from you witnessing the violence perpetrated against your mother. You also, in Australia, experienced racism, which you described as "destroying (you) mentally."

60 It was Dr Davis' opinion that, as at the date of his report, you suffered Post-Traumatic Stress Disorder and you met the formal criteria for Major Depressive Disorder, with anxious distress and atypical features.

61 Dr Davis was of the opinion that your Post-Traumatic Stress Disorder and Major Depressive Disorder were present at the time of your offending. The available information described a clear deterioration in mental state over the course of the year, particularly in the months preceding the incident. He considered your relationship difficulties very likely contributed to the incident.

62 It was unclear to Dr Davis whether your earlier attempts at suicide involved genuine suicidal intent. However, in the days leading up to the incident, the information suggested you were very down on yourself and emotionally unstable. It is his opinion that the motor vehicle incident involved genuine suicidal intent.

Dr Davis stated there were clear indications of "psych-ache", a psychological pain that is perceived as unbearable. It is a phenomenon where death is viewed as an escape from the overwhelming psychological pain.

63 With regard to the effect imprisonment may have on your symptoms and whether this will make imprisonment more difficult, Dr Davis was of the opinion that you "will have a very poor experience in prison." He stated you are "a very emotionally immature individual with a low threshold for experiencing depressed mood and anxiety." Both your diagnosed conditions will be exacerbated by the reality and vicissitudes of prison life. Your experience, he considers, will be considerably worse than that of the average inmate. Moreover, you are naïve to the ways of the world outside Gippsland and will be at considerable risk of victimisation.

Dr Davis stated that increased suicidal ideation is likely, and your risk for suicide will need to be closely monitored.

64 You were again assessed by Dr Davis on 6 May 2021. He re-administered the Paulhus Deception Scales test, the Personal Assessment Inventory, and the Trauma Symptom Inventory‑2 tests.

65 Dr Davis noted you had not worked since his previous assessment interview but had completed some online courses to obtain your "white card" and an alcohol service qualification. At the time of his previous assessment you were attending online courses but had not completed them by the time of the second assessment. You had also undergone recent surgery on your leg and knee. You continued to be prescribed anti-depressant medication fluoxetine. The dosage was increased from 20 milligrams to 30 milligrams a day.

66 With regard to the offences, you told Dr Davis that you did not think your relationship break-up was a "massive factor" but were more affected by comments made by your former girlfriend's friends. Dr Davis spoke to Mr Crestani, who reported that you had described several problematic incidents in the months leading up to the offences, including former friends saying, "fuck off and go kill yourself." You also stated that a friend had committed suicide and another had died from a drug overdose in the month before the offending.

"Mr. Gallagher's mental state has improved since I first assessed him in August 2020. Indeed, while he is clearly still experiencing some degree of depressed mood, perhaps without even being aware of it, he has a more positive outlook and is no longer plagued by thoughts of suicide. Nonetheless, he is still very emotionally immature and one gets the sense that they are talking to a younger high school student when conversing with Mr Gallagher. Re-administration of psychological testing showed some improvements, but testing still revealed a number of difficulties, including physical health problems, anxiety, obsessiveness, post-traumatic stress, depressed mood, suspiciousness and resentment, thought process difficulties, and some burgeoning personality difficulties including a poor sense of self and identity."

68 Despite improvements in your mental state, Dr Davis remained of the opinion you meet the formal criteria for Post-Traumatic Stress Disorder.

69 Dr Davis considered your depressed mood had improved to some degree, likely a reflection of the increased dose of anti-depressant medication and your continued engagement in psychological therapy. It was his opinion that you no longer met full criteria for a major depressive episode. Accordingly, he considered the appropriate diagnosis to be Major Depressive Disorder - with anxious distress and atypical features, in partial remission.

70 Dr Davis reiterated that the available information described a clear deterioration in your mental state over the course of the year, particularly in the months preceding the incident, to which your relationship difficulties very likely contributed.

71 Dr Davis considered that despite an improvement in your mental state, you remain a very emotionally immature individual with a low threshold for experiencing depressed mood and anxiety. He considers you will have a very poor experience in prison and that both your diagnosed conditions will be exacerbated by the reality and vicissitudes of prison life. He is of the opinion your response to imprisonment will be considerably worse than that of the average inmate. Moreover, despite your reasonably positive outlook, you will be at considerable risk of victimisation in prison. A return of suicidal ideation is likely, and the risk of suicide and victimisation will need to be closely monitored in a prison environment.

72 Dr Davis noted you have made attempts to address your mental health difficulties between the two assessments. You have increased your circle of pro‑social supports and have embraced the need to talk to close confidantes when you are feeling low. It is still his opinion that you possess a low risk for criminal recidivism.

73 Dr Davis recommended a comprehensive neuropsychological assessment be conducted. Accordingly, your solicitor arranged to have you assessed by neuropsychologist, Dr Loretta Evans.

74 Dr Evans assessed you on 23 June 2021 and her report, dated 7 July 2021, was tendered on your behalf.

75 Dr Evans was provided with background information, including a neuropsychological report of Joanna Tran, clinical neuropsychologist with Epworth Rehabilitation, dated 24 January 2020.

76 Dr Evans noted that Ms Tran's neuropsychological assessment identified attention and concentration inefficiencies, together with memory and word finding difficulties, that were considered to reflect the effects of trauma as well as psychological factors.

"Based on a history of: 1) Glasgow Coma score of 3/15 at the scene of the accident, 2) period of retrograde amnesia, and 3) estimated length of Post Traumatic Amnesia, Mr Gallagher was deemed to have sustained a severe traumatic brain injury - that occurred in the context of likely impressive 'cognitive reserve' (i.e., high premorbid level of intelligence and cognitive functioning). Hence, Mr Gallagher does not declare any cognitive skills to within impaired ranges, and when compared with results produced in January 2020, it is clear he has made a number of cognitive gains. Nonetheless, mild inefficiencies persist that I consider are likely to be enduring and further exacerbated by anxious mood state under certain circumstances."

78 Dr Evans considers the difficulties sustained from the traumatic brain injury are currently mild in nature. She states you declare:

"co-existing inefficiencies as a consequence of chronic anxiety and stress that intermittently negatively affect cognitive functioning - particularly attention, concentration, processing speed, and logical thinking, that are also mild but have a secondary effect on memory functions. Hence,

Mr Gallagher's cognitive inefficacies (sic) are currently considered to be due to a combination of head/brain trauma and emotional dysregulation."

79 Dr Evans stated continued recovery can be expected. From a cognitive perspective, she does not envisage you will experience any major adverse effects should you be sentenced to a term of imprisonment.

80 Exhibit D3 is a psychological report from Jason Crestani dated 14 May 2021. Mr Crestani, as at the date of his report, had seen you on 27 occasions. You were consulting him usually on a fortnightly basis. You were referred to him by a health psychologist at Epworth Rehabilitation. Mr Crestani states you have been working on your depression, anxiety and complex Post-traumatic Stress Disorder, as well as on ways to manage your acquired brain injury memory loss.

81 You reported to him that you have benefited from counselling and you can now be more open with friends and family about your feelings and difficulties. You also reported spending time with better friends whom you say are positive influences. You described your peers before the accident as immature and as having a bad influence on you. Mr Crestani stated his belief that this was a major contributor to your deteriorating mental health prior to the accident, as was your "strong need to help and protect your friends and family." Mr Crestani considers you no longer have any suicidal ideation and that your depression, anxiety and stress levels have reduced significantly. He stated you are very remorseful about the car accident and the death of an innocent person.

82 Dr Lore Mahinay provided a short report, dated 7 May 2021. Dr Mahinay confirms you had a splenectomy which requires lifetime Amoxicillin medication to avoid infection. Dr Mahinay also confirms that you are currently receiving 30 milligrams daily of Fluoxetine, to manage your ongoing depression and anxiety.

83 Also tendered on your behalf was a report from Mr Rob Brownlow, physiotherapist, dated 20 May 2021. You have been attending physiotherapy since 14 February 2021, initially twice per week for approximately six months. More recently, your attendance has been reduced to once per week. You require physiotherapy in respect of a number of injuries sustained in the collision and are likely to require ongoing physiotherapy for a further 12 to 18 months. Mr Brownlow considers you are likely to suffer a permanent disability in the right hip and lower back and will require a right hip and knee replacement in the future. You have recently undergone a right knee arthroscope to remove plates. Stopping physiotherapy at this time, he states, will have a significant detrimental effect.

84 I should also make mention of the Supervised Bail Progress Reports dated 4 May and 6 October 2021 filed with the court. You were placed on Youth Justice supervised bail on 20 February 2020. Conditions of bail included a curfew from 10.00pm to 6.00am, to reside at a particular address, not to drive a motor vehicle, and to comply with all lawful directions of medical, including mental health, service providers.

85 You have attended all scheduled supervision appointments and complied with the requirements to attend on Mr Crestani and a psychiatrist. Both reports note the positive support you receive from your mother as modelling a prosocial lifestyle and attitudes. You have, it is noted, demonstrated a positive response to Youth Justice Supervised bail.

86 Dr Fitzgerald relied on a number of factors in mitigation of penalty including:

(i) Your youth at the time of the offending and your young age at the time of sentencing;

(iii) Application of Verdins principles consequent upon your impaired mental state at the time of offending and currently;

(iv) Extra curial punishment as a result of the significant injuries you suffered in the collision;

(v) Your pleas of guilty reflecting remorse and significant utilitarian value; and

(vi) You have not previously been in trouble with the law and this will, it was conceded, be your first time in custody, save for the four days' pre‑sentence detention served in an adult prison following your discharge from hospital.

87 Dr Fitzgerald submitted that you be sentenced to a lengthy period of detention in a Youth Justice Centre with a non‑parole period. He submitted that the circumstances are exceptional and justify such a disposition. The factors relied upon as constituting "exceptional circumstances", he submitted, are your age, your excellent prospects of rehabilitation; your relative immaturity for your age, your particular vulnerability in an adult prison; the fact you do not have a criminal history; and your lack of involvement in the adult and youth justice criminal system.

88 In addition, Dr Fitzgerald submitted that such a penalty reflects the degree of extra curial punishment suffered by you, your plea of guilty and remorse, and the degree of specific deterrence that has already been achieved. He further submitted that such a disposition would avoid what might otherwise be considered a crushing sentence for a person of your age, life experience and vulnerabilities. This is, he submitted, notwithstanding the more punitive sentencing considerations that must be taken into account such as general deterrence.

89 Ms Harper, who appeared on behalf of the Director of Public Prosecutions, submitted that the objective gravity of your offending is high. The collision was not the result of momentary inattention or a microsleep but rather, was the result of a deliberate steering input by you. It was further put that your moral culpability for this offending is also high.

90 Ms Harper submitted that general deterrence is relevant to Charge 1 and it is well established that general deterrence should be given primacy in relation to culpable driving, even in the case of young offenders. Reliance was placed on DPP v Hill[11]; DPP v Neethling[12]; R v Whyte[13]; and DPP v Oates[14].

91 Ms Harper acknowledged that your age is a relevant consideration and informs your prospects of rehabilitation, which she submitted, were no higher than "reasonable".

92 Ms Harper also accepted the utilitarian value of your pleas of guilty and their indication of some remorse.

93 With regard to the application of Verdins principles, Ms Harper accepted there was a nexus between your mental state and the offending, and that by reason of your mental and physical conditions, imprisonment will be harder for you than for someone not suffering those impairments. It was also accepted that by reason of the serious injuries you suffered in the collision, there has been extra curial punishment.

94 Ms Harper submitted that exceptional circumstances had not been established, as required by s. 32(2C) Sentencing Act 1991 and that a period of imprisonment should be imposed.

95 In relation to Charge 2, Ms Harper submitted the charge falls to be dealt with under the Children's Court sentencing regime. However, Ms Harper further submitted that as you fall to be sentenced under the Sentencing Act in relation to Charge 1, I may sentence you in relation to both offences under the Sentencing Act if it is considered appropriate to do so. I was referred to the decision in Dale Cairns (a pseudonym) v The Queen.[15]

96 The objective gravity of your offending is undoubtedly high. This was sensibly conceded by your counsel. You deliberately steered into the path of an oncoming car. You were driving at a very high speed, measured at 141 kilometres per hour at the point of impact. It is also clear from the messages you were sending to your friends before the collision that your conduct was pre-meditated. You held only a learner's permit and were thus unlicensed. Mr Strickland was driving within the speed limit and on the correct side of the road. The circumstances were such that he had no real opportunity to avoid a collision with your car. An innocent life was lost, and other lives greatly impacted.

97 Your recklessness on Charge 1 is marked by you consciously and unjustifiably disregarding a substantial risk that the death of another person, or the infliction of grievous bodily harm upon another person, might result from your driving.[16] The seriousness of this offence is reflected in the maximum penalty of 20 years' imprisonment that may be imposed. Yours is a serious example of a serious offence.

98 The objective gravity in respect of Charge 2 is also high, given your deliberate steering into the Stricklands' car at a very high rate of speed, thereby placing

Mrs Strickland in danger of death. The maximum penalty for this offence is one of

99 In Tedford v The Queen[17] the Court stated:

Those who selfishly disregard the risks they impose upon others to satisfy their own suicidal ends can expect to pay a substantial price if those ends are not achieved ... [T]he applicant knew what he was doing, and made a deliberate decision to use a speeding train as a means of ending his life, regardless of the wider consequences. The principles of general deterrence must assume real weight in the sentencing mix.[18]

100 That observation was recently endorsed in Navaratnam v The Queen.[19] Whilst the applicant in Tedford was a much older person, it was not submitted that the principle set out in the quoted passage did not apply to you, only that there should be some allowance for your age and immaturity. You knew what you were doing and you made a deliberate decision to use an oncoming car as a means of ending your life, regardless of the wider consequences.

Sentencing Act

101 You are to be sentenced on Charge 1 under the provisions of the Sentencing Act, including s.5(1)(b).

102 The position of the parties was that I may also sentence you on Charge 2 pursuant to the provisions of the Sentencing Act, if I consider it appropriate to do so. Both counsel referred to Cairns, Dr Fitzgerald submitting it would be "superfluous" to resort to the Children, Youth and Families Act 2005 given I must sentence under the provisions of the Sentencing Act on Charge 1. In the circumstances of your case, and having regard in particular to the sentence I consider must be imposed on Charge 1, I propose to sentence you on both charges under the provisions of the Sentencing Act.

103 At the time you offended you were a child. Dr Fitzgerald relied on the principles set out in cases such as Azzopardi v The Queen,[20] and R v Mills.[21] Ms Harper acknowledged that your youth is a relevant sentencing consideration.

104 In Azzopardi, following a review of a number of decisions in which the youth of the offender was considered, including Mills, Redlich JA stated:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[22]

105 Your youth is a relevant sentencing consideration although given the seriousness of your offending, and the need for general deterrence, denunciation, and just punishment, there will be some reduction in its mitigating effect.

106 I have had regard to the decisions to which I was referred by Ms Harper concerning the relevance of general deterrence. I have also had regard to the decision in R v Tran,[23] which succinctly addressed the considerations of youth and general deterrence in cases of culpable driving. In that case_,_ Callaway JA stated:

General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. But it is not to be forgotten that a life has been lost.[24]

107 The Court in Cairns[25] stated that "generally speaking, the greater the seriousness of the crime, the more the mitigating influence of youth is diminished (although not completely eliminated)." Thus, whilst the need for general deterrence is lessened by reason of your age, it remains an important sentencing objective. That is, the sentence to be imposed must have, as one of its aims, the deterrence of others from engaging in similar offending behaviour.

108 Dr Fitzgerald submitted that Verdins[26] principles 1, 3, 4, 5 and 6 have application in your case. He submitted, based on the opinion of Dr Davis, that at the time you committed the offences you were suffering from acute psychological distress which was causally connected to the offending. That acute distress resulted in your genuine attempt to commit suicide. This, he submitted, reduced your level of moral culpability which, as Dr Fitzgerald properly conceded, was otherwise very high.

109 I accept there is a causal connection between your mental state and your offending. I find your moral culpability is reduced by reason of your mental state at the time you offended. Accordingly, the need for general deterrence is also moderated by your reduced moral culpability. For similar reason, the need to denounce your conduct is also moderated.

110 I do not consider much weight should attach to the need for specific deterrence in your case. I have regard to your mental state at the time you offended, and also the fact you do not have any previous convictions nor is there any subsequent offending. I also take into account the commitment you have shown to date towards your rehabilitation, my finding as to your prospects for rehabilitation, and the risk assessment opinion of Dr Davis.

111 I also accept that by reason of you suffering Post-Traumatic Stress Disorder, the burden of imprisonment will weigh more heavily on you than it would on a prisoner in normal health, and that there is a serious risk of a significant deterioration in your mental health by reason of imprisonment. Dr Davis was of the opinion that a return of suicidal ideation is likely, and your risk for suicide and victimisation will need to be closely monitored in a prison environment.

112 I accept your pleas of guilty are of significant utilitarian value. Although there was a committal hearing, it was confined, I was told, to the evidence of an accident reconstruction specialist, the issue being whether the collision was deliberate. Through your acceptance of the prosecution opening you now accept that the collision was deliberate. Your pleas of guilty have avoided the time and cost of a trial. Furthermore, they have spared witnesses, Mrs Strickland in particular, the trauma of having to give evidence and be subjected to cross-examination. You have, through your pleas, facilitated the course of justice and accepted responsibility for your offending. The pleas of guilty take on added significance in this time of the COVID-19 pandemic and, as was stated recently in Worboyes v The Queen, "ordinarily should attract a more pronounced amelioration of sentence than at another time" and result in a "perceptible amelioration of sentence."[27]

113 I also accept that your pleas of guilty are indicative of genuine remorse. There is other evidence that also demonstrates your genuine remorse. This includes your letter of apology to Mrs Strickland and her family, the references to your remorse in the psychological reports, and the opinions of some of your character referees.

114 I note in particular the report of Mr Crestani in which he states - "Calvin was very remorseful about the car accident and the death of an innocent person. He believes at the time he was not mentally there and it is not a reflection of who he is as a person. Having said that he said he needs to be responsible for his own actions and wished it could have been he who passed away rather than an innocent person. He said he is not expecting forgiveness from the family who were impacted by his actions. He said 'you have to earn forgiveness' and 'I guess the only way to do that is through rehabilitation.'"

115 I have had regard to each of the references tendered on your behalf. Some attest to your remorse and all attest to your otherwise good character. You are variously described as a polite and considerate young person. You tried hard in your academic studies. You are described as a talented athlete, showing much promise as a junior footballer. You also appear to have been a popular student and well-liked by your teachers. While the references all point to your otherwise good character, I am nevertheless required to have regard to the fact that offences similar to yours are often committed by young offenders with otherwise good character and excellent prospects for rehabilitation.[28]

116 With regard to your prospects for rehabilitation, I consider they are very good, if not excellent. You are still young and a person of otherwise good character. You have no previous convictions nor any subsequent convictions or outstanding charges. You have the support of your immediate family and good friends, and you have demonstrated commitment to your psychological and physical rehabilitation since the commission of the offences. I also have regard to Dr Davis' assessment that you present a low risk of re-offending. However, you still have some way to go, particularly in addressing your Post-Traumatic Stress Disorder and emotional immaturity. Rehabilitation, particularly in view of your young age, remains an important sentencing consideration.

117 As earlier mentioned, you sustained serious injuries as a result of your offending. In R v Daetz,[29] James J, with whom the other members of the Court agreed, stated:

" ... while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. ... In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.[30]

118 I accept that in the circumstances of your case, the injuries you sustained directly as a result of your offending, are properly to be taken into account in determining sentence. As was said in R v Barci,[31] it is not a complete answer to say you brought your injuries upon yourself. You have spent a long period recovering from your injuries, your spleen was removed and you will require lifelong medication as a result. Your injuries were serious and constitute an enduring punishment for your criminal behaviour.

119 I have had regard to a number of sentencing cases from both this Court and the Court of Appeal for the offences with which you are charged, including all of those to which I was referred by counsel. I have also had regard to relevant cases set out in the Judicial College of Victoria's Sentencing Manual. Current sentencing practice is one of a number of factors to which I am required to have regard. Sentences in other cases are not precedents that must be followed unless capable of being distinguished. Where they are of a similar character they may play a part in informing the instinctive synthesis.[32] Whilst the cases to which I have referred are of some assistance, no case was on all fours with the objective and subjective features of your case.

120 I have regard also to the principle of totality and the need for a just punishment. I do not consider, given the seriousness of your offending, that it is appropriate to sentence you to detention in a Youth Justice Centre. The maximum penalty I consider appropriate in all the circumstances exceeds the maximum period of detention in a Youth Justice Centre that may be imposed.

121 However, I do consider it appropriate that I make a recommendation that the Adult Parole Board directs that you serve or all or part of your sentence in a Youth Justice Centre. I make this recommendation given your age, vulnerability, lack of prior convictions, your prospects of rehabilitation, your emotional immaturity, your on-going physical disabilities, and your compromised mental state as set out in the reports of Dr Davis, particularly your Post-traumatic Stress Disorder and Major Depressive Disorder.

122 I also take into account the fact that you will be imprisoned at a time when there are in place restrictions within the Correctional system by reason of the COVID-19 pandemic. These include a period of quarantine and prohibitions from time to time on personal visits from family and friends.

123 Sentencing in a case such as this is difficult with the factors I am required by law to take into account pulling in different directions. I also acknowledge that whatever be the sentence I impose, it will not make up for the impact your conduct has had upon the victims of your offending.

125 On the charge of culpable driving causing death you are convicted and sentenced to a term of imprisonment of 5 years and 4 months.

126 On the charge of reckless conduct endangering life you are convicted and sentenced to a term of imprisonment of 18 months.

127 I direct that 3 months of the sentence imposed on Charge 2, be served cumulatively on the sentence imposed on Charge 1.

128 This makes a total effective sentence of 5 years and 7 months' imprisonment.

129 I set a non-parole period of 2 years and 9 months. I consider this to the be minimum period that, in all the circumstances of your case, justice requires you to serve. I have allowed for a relatively lengthy parole period given your age and prospects for rehabilitation.

130 Pursuant to s 89 of the Sentencing Act I direct that all licenses or permits held by you be cancelled and you be disqualified from obtaining a further license or permit for a period of 4 years from the date upon which you were admitted to bail which was 20 February 2020.

131 Had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of 7 years imprisonment with a non-parole period of four years and two months.

132 Pursuant to s. 18 of the Sentencing Act, I declare the period of 4 days, not including today, as the period of imprisonment already served under the sentence.

133 MS HARPER: I apologise, Your Honour. There was a s. 464 application served on my learned friend some time ago. That would be made pursuant to s. 464ZF(2) given in my submission that the offender is an adult now. If Your Honour takes the view that it should be imposed at all but from the time he was committing the offence which he was a child it would be made under 464U.

135 DR FITZGERALD: The order's not opposed in any case.

136 HIS HONOUR: Thank you. In the circumstances and having particular regard to the seriousness of the offence, I will accede to making the order for a sample of saliva or blood pursuant to s. 464U was it Ms Harper?

137 MS HARPER: If it's taken from the time the offence was committed, it is U. If it's taken from today's date it's ZF(2).

139 MS HARPER: It hasn't been taken yet, Your Honour.

140 HIS HONOUR: Well then it would be from today's date would it not?

142 HIS HONOUR: All right, the order will be made pursuant to s. 464ZF. Mr Gallagher, what that means is that at some point a police officer will seek a sample generally by way of mouth swab for the purposes of placing your DNA on the relevant database. I should explain to you that if you refuse to provide the sample, police may use reasonable force to take that sample from you. Do you understand that? All right, thank you.

145 HIS HONOUR: I am indebted to both counsel for the assistance you have both given me in this difficult sentencing case and I acknowledge that throughout these proceedings Mr Gallagher's mother has been present in court, as indeed as I understand it, all of the victims of the offence.

146 HIS HONOUR: Thank you. Please adjourn the court.

[11] [2012] VSCA 144; 223 A Crim R 285.

[12] [2009] VSCA 116; 22 VR 466.

[13] [2002] NSWCCA 343; 55 NSWLR 252.

[14] [2007] VSCA 59; 47 MVR 483.

[15] [2018] VSCA 333.

[16] See s318(2)(a) Crimes Act 1958.

[17] [2020] VSCA 71.

[19] [2021] VSCA 26 at [31]; 95 MVR 191.

[20] [2011] VSCA 372; 35 VR 43.

[21] [1998] 4 VR 235.

[23] [2002] VSCA 52; 4 VR 457.

[26] R v Verdins & Ors (2007) VR 269.

[27] [2021] VSCA 169, [39]; 96 MVR 344.

[28] See DPP v Currie; DPP v Daniels (a pseudonym) [2021] VSCA 272, [209].

[29] [2003] NSWCCA 216; 139 A Crim R 39.

[31] R v Barci and Asling (1994) 76 A Crim R 103.

[32] DPP v Zhuang [2015] VSCA 96 at [30]; [2015] VSCA 96; 250 A Crim R 282.