DPP v Goriainova [2014] VCC 547

4 On the night in question, you had been drinking with young friends at a Docklands nightclub. You told police you consumed 7-8 Corona bottles of beer and one shot of vodka. Sensibly, your group had a sober designated driver. You all ended up at a café in Chapel Street, Prahran. Afterwards, you insisted that you would drive your friend's BMW two-door coupé. Two friends said that you should stick to the designated driver plan and not drive, but you ignored them. Clearly they were concerned about your drinking. But, unfortunately, they were not so concerned that they prevented you from taking control of the vehicle. One of your passengers was asleep in the front seat of the car and being a tall man (197cm/6'5") you were apparently reluctant to sit in the restricted space of the rear seat. But the simple answer was to put the that man in the rear so you could sit in the front of the car, as you had done on earlier trips in the night. The answer was certainly not to have driven the car.

5 You later claimed to police that you felt normal when driving and not intoxicated, but this was clearly not the case; as so often happens with drinking drivers, you were fooling yourself. In deciding to drive, you made a serious error of judgment which has had fatal and serious consequences.

6 So it was that you drove east along Malvern Road (away from the city) en route to your home in Rowville. You had four young male friends as passengers. You had the benefit of favourable driving conditions, the weather was dry and there was excellent visibility and good street lighting. There was very little traffic on the road. There was no mechanical fault with the car which caused or contributed to the collision.

7 The jury had the advantage of a view of the scene, at night, in conditions that were accepted as almost identical to those on the night in question.

8 At about 1.15am, shortly after driving through the Hawksburn shopping centre, from a distance of 50 to 100 metres away, one of your passengers, the sober designated driver, saw the two pedestrians walk out from the left side onto the road into your centre lane. He warned you to look out and to stop.[5] Another passenger also saw them walk out from the left and also told you to stop and slow down.[6] A third passenger heard the warning.[7] I am satisfied beyond a reasonable doubt that you did not see the pedestrians at this point as you did not respond to these warnings in any way; indeed, you told police you did not hear these warnings. You said when you saw the men you braked but could not avoid driving straight into them. But you also told police you thought they were coming across the road from your right side when they were clearly coming from your left, walking to the opposite side of the road where Mr Carmody lived. You were obviously very confused about the situation you faced.

9 Due to significant post-impact amnesia, Mr McQueen was unable to explain anything about the circumstances of the collision. There was no evidence as to where the two men had come from before walking onto the road. Mr McQueen's last memory was being at a festival the previous afternoon and his friend offering him a tablet, but he does not recall if he took it.

10 According to the evidence of an acknowledged expert collision reconstructionist, Det. Ag/Sgt. Janelle Mehegan of the Major Collision Investigation Unit, the strong likelihood was that, based on the presence of debris and human matter on the road, the collision occurred in an area very close to the eastern side of a pedestrian crossing in Malvern Road, just past the intersections of Malvern Road with Mathoura and Chatsworth Roads. This was the described area 15m to 17m west of Mr McQueen's final resting position. The 17m point aligned with the easternmost line of the crossing and the 15m line was 2m to the east of that line in your direction of travel. I shall call this the area of collision (AOC). This means you collided with the pedestrians when they were not actually on the crossing, although they were very close to it. The AOC was an important calculation because the estimate of your impact speed made by the reconstructionist was based upon it.

11 I am satisfied the jury accepted this calculation of the AOC as reliable and I accept it beyond reasonable doubt. Because there has been some argument as to this finding, I will set out my reasons for reaching this conclusion.

12 The AOC was, according to the reconstructionist, based on a number of well accepted principles and research concerning pedestrian motor vehicle collisions.[8]

• First, once the pedestrian is struck all physical evidence (including the pedestrian, human matter and items possessed by the victim) will move in the same direction as the vehicle is travelling, here, to the east.

• Secondly, every pedestrian collision involves a "total throw distance", which is the total distance from impact to the pedestrian's final rest position. There are three phases, namely, the impact phase, when the pedestrian is carried on the car, the flight phase, when the pedestrian is coming away from the vehicle before landing, and finally, the slide phase, when the pedestrian slides along the road before coming to final rest. The slide phase typically represents 25% - 45% of the total throw distance.

• Thirdly, it follows that the point of collision must have been west of Mr McQueen's final rest position, which was 15m from the easternmost line of the crossing, which was used as a measuring point (the measuring point).

• Fourthly, Mr McQueen's blood and wallet (designated as marker 4) were found 12m from the measuring point, which was 3m west of his rest position. Your counsel questioned whether this evidence was accurate, but it was based on uncontested measurements and photographs taken at the scene by very experienced motor collision investigators from the Major Collision Investigation Unit. This blood/wallet position was, theoretically, the most eastern point at which the collision could have occurred, but according to the expert, this was "almost impossible", as she put it, because there were "scuffing" marks on the road comprising that victim's blood and skin which were consistent with Mr McQueen sliding along the road surface preceding/leading up to the marker 4 blood/wallet position.

• Fifthly, Mr McQueen's slide distance was between 5m and 6m long. Taking that distance as 45% of the total throw distance, the actual point of impact was calculated as occurring 15m west of Mr McQueen's rest position; and using the 25% figure, the impact position was 17m from that position. Accordingly, the AOC was determined to be within the area from the easternmost line of the crossing (17m line) to 2m east of that line (15m line). This calculation was consistent with the evidence of the reconstructionist that it was hard in this case to be precise as to the exact position of the point of impact.[9]

13 It was not disputed that at the time of collision the lights on the crossing were showing green in your favour. This was confirmed by another driver, Mr Krull, who was approaching the crossing from the opposite direction. This meant the two victims were crossing against the red light and they were not actually on the pedestrian crossing, they were just to the east of it. However, there was a street light immediately above the crossing and, as I have noted, the weather was good and visibility was excellent.

14 Next, I will turn to the issue of your speed. As you drove through the Hawksburn Village, you were in a 40kph zone. After passing Mathoura Road on your left, which was just before the crossing, the zone increased to 60kph. The reconstructionist's opinion was that your impact speed was in the vicinity of 80 to 85 kilometres per hour.[10] I am satisfied the jury accepted this calculation of speed and I am satisfied beyond reasonable doubt that this was your range of speed on impact.

15 Because there has also been argument on the plea as to this finding, I will set out my reasons for reaching this conclusion.

• First, the reconstructionist made clear that the only measurement required to establish impact speed in a pedestrian collision was the total throw distance, that is, as I have mentioned, the total distance from impact to the pedestrian's final rest position.[11] Obviously, a point of impact or, as in this case, the AOC, had to first be calculated to establish speed.

• Secondly, the witness used the final rest position of the deceased to establish impact speed. Your vehicle stopped and the deceased came to rest next to it, respectively, 44m and 42m east of the easternmost line of the crossing. As explained, it would be unreliable to act on Mr McQueen's rest position for this purpose because he suffered a different kind of impact to the deceased, for which there was no speed equation. The deceased was subjected to a "wrap" impact where his upper body wrapped or folded onto the bonnet of your car. Then he impacted the windscreen which was smashed before he separated from the car and fell to the road on the driver's side. By contrast, Mr McQueen suffered a combination of a "wrap" and "fender vault" impact, which meant he was struck by the front right corner of your vehicle in what was described as a "glancing blow", he wrapped onto the bonnet for a short time without hitting the windscreen and fell off on the driver's side impacting the side mirror. [12] Hence, he was accelerated by the impact at a lower speed to the deceased and fell to the road much closer to the crossing than was the case for the deceased.

• Thirdly, two different but well recognised formulas were used to calculate impact speed.[13] They returned similar but slightly different results. Using the outermost ranges of the AOC, that is using the 17m line as the point of impact, the range of impact speed was 82kph to 85kph. Using the 15m line as the point of impact, the speed range was 80kph to 83kph. Hence, the reconstructionist's opinion was that your impact speed was in the vicinity of 80 to 85kph.

None of your passengers gave evidence as to your impact speed. Mr Krull, approaching from the opposite direction, said he was unable to estimate your speed, although he did not think you were doing anything out of the ordinary. And a neighbour who looked out of her window after hearing two loud thuds saw you car moving past "very quickly". You told police that you were driving between 40kph to 50kph along Malvern Road, you thought the speed limit was 40 or 50 or 60, you didn't know, and you claimed you kept an eye on your speedo at all times and would not have been speeding in the area. Clearly, you were travelling significantly faster than you claimed and seemed to have been confused about the speed limit applicable to you before it changed to 60 just before the crossing.

• Fourthly, as is clear, the calculation of this impact speed range was dependant on the accuracy of the AOC. I have set out why I am satisfied as to the accuracy of that calculation. The range of speed exists because there was an area of impact, not a precise point of impact able to be calculated. True it was, the expert said if she was wrong about the total throw distance, her speed calculations would be unreliable. But I am satisfied she was not in error as to the total throw distance upon which the AOC was based. Hence, I am satisfied the impact speed range of 80kph to 85kph is a reliable one.

• Fifthly, the reconstructionist indicated that the impact speed range would have been 70kph to 74kph had the easternmost possible point of collision been used, that is, the blood/wallet position connected with Mr McQueen. However, as noted, the expert said that point was "almost impossible" because of the "scuffing" marks which preceded it.[14] Indeed, the expert said that the damage to the front of the car and the windscreen was too extreme for what would be expected with an impact speed of around 70kph.[15] Accordingly, I do not accept that this lower impact speed range should be accepted for sentencing purposes, it was no more than a theoretical possibility.

• Sixthly, your counsel argued that the formulae were unreliable because, as the expert conceded, they deal with single pedestrian collisions. However, the force of such an argument depended on whether the two pedestrians collided with each other on impact. No eye witness said this happened. The expert was clear that although there was a potential for this to happen, her opinion in this case was that in fact they did not collide. While she conceded she could not say precisely where the two pedestrians were on the road or what their positional relationship was, she was satisfied that because of the position of the damage caused to the front of the car on impact with the deceased, slightly to the left of the BMW badge, and because the major crease in the bonnet angled as he moved back towards the top right corner of the windscreen (as you faced it), the deceased was actually moving across the lane from your left to right (north to south) on impact. This compelling analysis contradicted the account of your passengers who said that both men were stationary on the road in front of you.[16]

As to Mr McQueen, he could have been facing the deceased with his left side facing onto your car, as suggested by a number of your passengers. This is consistent with serious damage sustained to his left knee, although the expert said this injury may also have been caused by impact of the car or when he fell onto the road. Mr McQueen may have been in front of the deceased and/or further east of him, that is, slightly further away from you than the deceased. Of importance, there was distinct secondary damage to the front right corner of your car caused by the impact with Mr McQueen. I have already described the evidence as to the dynamics of his movement thereafter. It is clear that both men were hit at almost the same time, but Mr McQueen may have taken one more step than the deceased.

What is significant is the fact of the two distinct areas of damage to the front of the car and it was for this reason the witness expressed the view that whist it is possible for two pedestrians to collide with each other in another scenario, she did not consider they did so in this instance. Accordingly, the use of formulae designed for single pedestrian collisions did not give rise to the unreliability suggested by your counsel. In effect, the formulae were applied to a single pedestrian, namely the deceased.

• Finally, your counsel argued that there was no objective evidence of speed such as would be available from a speed camera, but that did not preclude the jury, and it does not preclude me, acting on the application of proper scientific principle utilised by an acknowledged expert in the field.

16 There is one other aspect concerning your speed. If, in fact, you braked prior to impact, as you claimed to police, that meant you were driving at an even faster speed as you approached the collision area.[17] But I do not act on any possibility as to a higher speed than the impact range of 80kph to 85kph.

17 There was some mixed evidence of pre and post impact braking amongst witnesses but all of them were indoors when they heard the collision and investigators found no evidence of skid marks at all, although police collision experts conceded that such marking will not always be present with ABS braking, which you had on your vehicle. Significantly, none of your passengers suggested that you braked before impact. In the circumstances of your failing to hear the warnings, your clear confusion about the position of the pedestrians and your speed, and the fact that you thought you were not intoxicated, I am unable to conclude on the balance of probabilities that you did in fact brake before impact. Indeed, you were convicted because you were a compromised driver who, for that reason, was unable to take appropriate action to avoid the collision or to at least, minimise the impact.

18 Next, I will consider your intoxication. After your arrest, you were too intoxicated to be interviewed by police. Dr Morris Odell, a senior forensic physician experienced in estimating levels of intoxication and the effects of alcohol on driving, expressed the opinion that at the time of collision, you had a total alcohol concentration in your stomach and blood of between 0.154% and 0.166%, with a likely calculation at time of impact very close to 0.160%, which is equivalent to nine pots of full strength beer.[18] At this level there was a substantial risk of collision, somewhere between 10 and 100 times higher than the risk with a driver having no alcohol in his or her system.[19] Dr Odell's opinion, which I am satisfied the jury accepted, and which I accept beyond a reasonable doubt, was that a significant number of your driving skills would have been adversely affected by alcohol and that you were incapable of having proper control of your vehicle at the time of collision.[20]

19 At trial you did not give evidence. Your defence was that it did not matter who was driving the car or what state they were in or the speed they were going, it was an unavoidable, inevitable accident because the pedestrians were intoxicated and had recklessly walked out in front of your car, perhaps from behind a car or from in between parked cars. Thus, as it was put, it was the conduct of the victims which solely caused the death and serious injury; nothing that you did caused this result.

20 However, it is clear that the jury accepted the prosecution argument that had you been a responsible and uncompromised driver, one who was not intoxicated or speeding and one who was keeping a proper lookout, you could have taken action to avoid or minimise the collision and its terrible results, notwithstanding there was only a short time in which to do so.

21 Obviously, the jury rejected the evidence of Mr Krull, who was approaching the crossing from the opposite direction, that in his opinion there was nothing you could do to avoid the collision. None of your passengers suggested this. It was highly likely that the jury did not accept that the pedestrians had walked out from between two parked cars (a suggestion made by one of your passengers[21]) as the scene was shut down very shortly after the collision and, as was clear from the uncontested investigators' findings, there simply were not two parked cars in the vicinity of the crossing or any possible point of impact.[22] It was also highly unlikely that the jury considered the pedestrians walked from behind or beside a parked car as the only one possible was the car parked on the left (marked green on the scale diagram), the front of which was about 17.5m from the west line of the crossing. According to the reconstructionist, it was unlikely and inconsistent with the position of the physical evidence on the road east of the crossing for the impact to have occurred in the area of this parked car.[23] Indeed, the witness implied that such a scenario was only likely to have occurred with an impact speed of about 100kph.

22 As to the issue of causation, it is clear from the jury's verdicts that it was satisfied beyond a reasonable doubt that your driving conduct was a substantial or significant cause of the death and serious injury, regardless of any alleged contributory conduct of the two pedestrians. However, the deceased had a blood alcohol concentration of 0.24% - 0.25% and 0.7mg of MDMA (ecstasy) in his blood, although there was no evidence as to the likely effect of that amount of the drug on the deceased's conduct. Mr McQueen had a BAC of 0.175% with no evidence of drugs in his system. Hence, both of the pedestrians were heavily intoxicated, which would have compromised their perceptions and made them prone to risky behaviour. The uncontested expert evidence was that intoxicated pedestrians are more likely to be involved in fatal and serious injury collisions, especially at night. I am satisfied a cautious sober pedestrian would not have walked out onto the road into the path of your on-coming vehicle, and that of Mr Krull's coming from the opposite direction, especially very close to the pedestrian crossing when the lights were green in your favour and red to the pedestrians. A prudent sober pedestrian would have pressed the button, waited for the green light and walked across with the safety of the crossing, especially at night. Whilst careful and responsible drivers, uncompromised drivers, as the prosecution put it, must be able to react safely to such sudden emergencies particularly in favourable driving conditions, I am satisfied on the balance of probabilities that the unwise conduct of the two pedestrians contributed to a dangerous situation and that that factor must be taken into account in your favour for sentencing purposes. The prosecution and defence agree with this approach.**

23 I will turn now to legal process. Following the impact, you stopped your car at the scene and awaited the arrival of the police. Following your police interview you were released. Surprisingly, you were not charged until 28 September 2012, a delay of approximately nine months. You conducted a contested committal in March 2013. Following the verdicts, I revoked bail and there is now 23 days pre-sentence detention up to, but not including, today.

**24 Now, to victim impact. I have received a number of victim impact statements which were read out in court. First, Mr Carmody's mother, sister and brother, who were present in court, said the loss of their son and sibling has been devastating for them. Aaron's father died when he was ten years old and, as the eldest son, over time he became the father figure to the family. He was a very special person to his family. Even though he moved away from home seven years before the incident, each week he would return to the family home for dinner with his mother and three siblings. He was an honest, hardworking person and was intensely loyal to his friends and family. As his mother said, the loss of a child that was so special is the worst thing any parent could experience. She fears that she will never overcome his loss. His brother and sister also spoke of their terrible grief and trauma experienced by the family and of adverse emotional, social and physical consequences for them. Aaron's brother said nothing will ever be as hard as choosing the coffin for his brother's funeral.

25 I also received a statement from Aaron's former partner and friend who lives in Sydney. He states what an important person Aaron was to him and how they had shared hopes and dreams and their lives with one another and of how much worse off he now is for his loss.

26 The statements from Aaron's mother and sister were compiled in October 2012 and I trust that they, along with the others who have suffered, have found some way to assimilate this tragedy and move on with their lives. Having said that however, you can be sure that when you are ultimately released from prison, so that you may get on with the rest of your life and have meaningful relationships with your family and friends, Aaron's family and friends will forever have to bear the terrible loss of their loved one.

27 Clinton McQueen was 24 at the time of the incident. He worked as a speech pathologist in primary and secondary schools. His serious injuries were agreed at trial. He suffered post traumatic amnesia lasting 29 days; moderately severe traumatic brain injury with ongoing cognitive difficulties; multiple orthopaedic injury, including fractures to his pelvis, his left tibula and fibia (the bones in his lower leg); and extensive ligament damage to the left knee requiring a total knee reconstruction operation.

28 Mr McQueen provided a victim impact statement declared on 22 March 2014. He had been present in court, but not so when his statement was read out. It is a most detailed and comprehensive description of the serious physical and mental trauma to which he has been subjected and which is ongoing. As he says, "The individual ramifications of the collision were, and forever will be, life changing. When I look at them as a whole, it has consumed me and left me broken - physically, emotionally, mentally and financially." He lost his partner, Aaron Carmody, and although their relationship was of short duration, its depth of emotion was, he says, profound and mutual. Aaron was Mr McQueen's first love. The extreme sense of grief, loss and utter despair which he felt by his partner's death led to suicidal ideation and one such attempt. It is pleasing to note that Mr McQueen has now established a new relationship which is also helping his psychological rehabilitation.

29 Mr McQueen has been left with cognition and language disabilities, particularly concerning his short term memory, attention capacities and processing time and executive functioning. This disability has led to difficulties in day-to-day functioning and engaging effectively in his occupation as a speech pathologist. He ultimately returned to work, but has only been effectively able to complete two days per week. His professional development has been inhibited and he has suffered significant financial loss. He experienced great anxiety when involved with legal proceedings. He has been diagnosed with Post-Traumatic Stress Disorder - chronic, accompanied by severe depression, anxiety and stress, as well as suffering a severe sleep disorder in the early period after the incident. He presently has the assistance of regular psychological counselling which has been helpful to him.

30 One significant consequence for Mr McQueen was the unexpected revelation of his sexuality to his father, which compromised his relationship with his father and led to an estrangement between the father and his sister. Sadly, Mr McQueen has also become distant from certain friends. He took a trip overseas to try to disassociate from all of his difficulties, but his physical and mental problems prevailed and compromised his trip.

31 Physically, Mr McQueen still suffers serious disabilities. He has serious walking difficulties and is constantly engaged in treatment to address these problems. He is to have a second knee reconstruction operation in the near future which, as he says, will bring him back to square one.

32 Mr McQueen's difficulties were confirmed in accompanying medical and psychological reports. It is expected that over the next six months he should attain good psychological functioning. I note that he does not speak with aggression or bitterness towards you, which is a remarkable aspect, and it is to be hoped that his rehabilitation will continue in a positive way.

33 There can be no doubt that you have been the cause of profound and lasting victim impact in this case. You should feel a great deal of shame and remorse for the grief and trauma which you have caused. These eloquent victim impact statements stand as telling reminders of the human impact of your crimes. To adopt the words of one judge in another case, it is no exaggeration to say that your deplorable irresponsibility has devastated many lives, not just the life which you destroyed and the life that you have very significantly impaired.[24]**

**34 I will turn to your background and personal circumstances. You are now 23, you were aged 21 at the time of offending. You were born in Moscow, Russia, and are the younger of two children. You have a close relationship with your mother and sister, but a strained relationship with your father. You are the product of a supportive and normal family environment.

35 Your family migrated to Australia in 1995 when you were five and did not speak English. Your early education was made difficult by language difficulties but once they were overcome, you flourished. You achieved well academically and had no problems at school. You had a supportive friendship circle. You successfully completed Year 12 in 2008. Before then, you had completed an automotive certificate and worked part-time to support yourself. Following school, you studied mechanical engineering at a TAFE college, completing a Diploma of Mechanical Engineering in 2010. From then until the present, you have been in full-time employment as a logistics manager and stevedore at Patricks Stevedoring. Your father is a general manager with Toll Shipping.

36 You have resided with your mother in the family home. Following this incident, your parents separated for about eight months, but have since reconciled. Your sister has a good job and lives with her partner who is a solicitor. He gave evidence on your plea. He supported a character reference provided which indicated you were a responsible and conscientious person. You impressed him as a person who does not drink alcohol on a regular basis and someone aware of the dangers of drinking and driving. In fact, he said you often took taxis when social events involved drinking alcohol. You were described as a very patient and responsible driver, and a timid and respectful individual. Since the incident, you have sought counselling and that has assisted you to understand the significance of this incident which has, according to the solicitor, changed your outlook and attitude to life. In addition to confirming these matters, in his evidence, the solicitor said that the impact of the collision had led to shock and disbelief on your part, deep sadness and regret for your conduct. Through this witness (and your counsel), you passed on your deepest regret and apology to the Carmody family and to Mr McQueen. Apparently you wanted to do this at committal, but it was not considered appropriate by the informant. In spite of the professional assistance you have received, the scars remain and you suffer from ongoing nightmares and rumination about the collision. The solicitor concluded his evidence by stating that you had learned a big lesson and that, in his opinion, you had the capacity to be a worthwhile member of society. This evidence was uncontested by the prosecution.

37 You have been in a stable relationship with a young lady for about two years, it commenced after the incident. She and your family supported you in court.

38 I received a psychological report from Barbara O'Loughlin dated 24 March 2014. In it she confirms that you first sought psychological assistance shortly after the incident, on 18 January 2012. You were diagnosed suffering from severe symptoms of anxiety and depression consistent with Acute Stress Disorder arising from the incident. In particular, you were noted to be shocked and distressed about the death of Mr Carmody and the injury to the other pedestrian. Testing revealed you were suffering from severe symptoms of anxiety and extremely severe symptoms of depression. Counselling over three months had a very positive effect and you were able to go back to your normal working and social life whilst you awaited the resolution of the matter. When the counsellor last saw you on 15 March 2012, your trauma symptoms had reduced to a mild level and you were managing your work and life well.

39 I also received a psychological report from Patrick Newton, dated 24 March 2014. He saw you in custody following verdict. He noted that despite the early counselling, you had been troubled by continuing intrusive rumination on the incident. He said that you started drinking alcohol when you were 18, typically on weekends, consuming between 10 and 20 standard drinks two or three times per month. Since the incident, you have substantially reduced your alcohol intake and become something of an advocate amongst your friends for responsible drinking and drinking/driving. You expressed to the psychologist significant distress regarding the collision and acknowledged that you will have to live for the rest of your life with the thought that you took someone else's life. You expressed empathy for the victim impact.

40 Mr Newton's opinion was that you are presently experiencing significant anxiety, which is the result of distress upon your recent incarceration and rekindled traumatic symptoms connected to the incident. These symptoms are considered to be in excess of those experienced by typical first-time remandees and your symptoms are sufficient to meet a diagnostic criteria for an Adjustment Disorder with Anxiety. Whilst you do not currently meet criteria for Post-Traumatic Stress Disorder condition, you are considered at some risk for deterioration in your mental health and it is recommended that you participate in treatment with a mental health professional in the short to medium term. Your reported pattern of drinking prior to the incident was sufficiently severe, in his opinion, to meet criteria for a Mild Alcohol-Use Disorder. Your personality development has been somewhat delayed by the two year period awaiting resolution of the matter. Nevertheless, according to the psychologist, it remains essentially normal. You do not manifest anti-social or psychopathic traits. You have pro-social values and aspire to caring relationships with others. You do not express anti-authoritarian attitudes and are not alienated from society more generally. You are described as not being egocentric or callous and as having a strong work-ethic. You do not have a personality disorder and no significant dysfunctional personality traits were identified. You are assessed as having normal intelligence and, hence, good potential to benefit from further educational and therapeutic endeavours, and excellent prospects for rehabilitation

41 I also received a number of glowing and supportive character references. Your partner spoke of your kind and gentle nature and efforts to put the needs of others before your own. One such example is that you have been a blood donor with the Red Cross. She also spoke of your strong work ethic as a logistics manager, always willing to do after-hours work when called upon to do so. She spoke of the remorse and struggle that you have demonstrated in response to the incident, and that concern was particularly evident in the lead-up to the trial. Your partner is willing to stand by you and speaks of the deep love and affection you share. Her overview was supported by her parents who indicated that your offending was out of character.

42 Four other close friends confirmed your character traits as I have already outlined them, and of your remorse and regret for the incident. Several expressed the view that this was a one-off event in your life and that you were unlikely to re-offend in the future.**

**43 There are a number of mitigating circumstances relied upon by your counsel which I accept. You come from a supportive and nurturing family background. You achieved well at school and thereafter academically. You have been fully and productively employed since 2010 and have displayed a significant work ethic. You have been consistently described as a gentle, caring person who wants to help others. You are in a stable and loving relationship.

44 Significantly, you are a youthful offender with no prior convictions. As acknowledged by the Court of Appeal, young, immature offenders are more prone to ill-considered or rash decision making; the courts recognise the potential for young offenders to be redeemed and rehabilitated; and acknowledge the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of rehabilitation.[25] Your counsel relied on the Mills principle that, when dealing with a youthful offender, rehabilitation is far more important than general deterrence.[26] This is because punishment may, in fact, lead to further offending; thus, for example, individualised treatment focussing on rehabilitation is to be preferred. Of course, such rehabilitation benefits the community as well as the offender. However, the Mills principles are general propositions which are not of universal or automatic application. Put another way, youth cannot in all cases keep an offender from jail. Here, your offending is far too serious to avoid an immediate jail penalty. So much is conceded by your counsel. Obviously, I must have regard to the fact that this will be the first time you will be sentenced to a term of imprisonment, and I note the difficulty you have been experiencing since you have been in custody following the verdicts.

45 As I said, you have no prior convictions, although I note the three on-the-spot fines for driving-related matters sustained before your offending, which have been frankly acknowledged by you. One of these was for speeding by less than 10 kph and another for using a mobile phone. Nevertheless, I must treat you as a first offender and I do so. You have not been in any further trouble since this incident.

46 Next, you co-operated with and assisted police in the way set out in the defence written submission.

47 I also accept that you were shocked and psychologically disturbed by your conduct, so much so that you required and voluntarily sought psychological counselling. There is a good deal of material which confirms that you regret and are remorseful for your conduct. As submitted, genuine remorse is a very important element for sentencing purposes as it enhances prospects of rehabilitation and reduces the need for specific deterrence.[27] During the course of the plea hearing, I raised with counsel the fact that you had contested the matter at trial and, whilst you were entitled to take that course and are not to be punished for doing so, it did not appear consistent with a person who was truly remorseful for the crimes committed. Usually, remorseful people plead guilty. Obviously, having contested the matter, you have no claim to a significant discount for having pleaded guilty at the earliest time; you have avoided a course which would have not only had a utilitarian benefit in the administration of criminal justice but also would have avoided additional trauma for the victims in this case.

48 Defence counsel particularly emphasised that you did not contest that your driving was grossly negligent and that you were intoxicated such that you were incapable of having proper control of your vehicle at the time of collision. This is generally true, but you did contend your impact speed was lower than 80kph to 85kph (which in part depended on evidence as to the point or area of impact). It was submitted that you had simply contested the "technical point" of causation. I do not consider that the issue of causation was a "technical point" in the case. Indeed, it was a fundamental element that required proof beyond reasonable doubt. Frankly, I did not consider that finding against you a surprising one, notwithstanding the unwise conduct of the two pedestrians. Whilst I agree with your counsel's submission that there can be serious cases of this kind of offending without moral turpitude,[28] it is clear that the attitude of a driver to his or her commission of the offence may be distinctly relevant to an assessment of the relative seriousness of the infringement. As the Court of Appeal said in the case of Scholes relied upon by your counsel, the attitude of an accused to the episode of driving will be relevant to an appraisal of the offence. [29]

49 As submitted, I accept that you have expressed genuine remorse for your offending and I do not find that that remorse is diminished by your plea of not guilty. Nevertheless, I am satisfied that you have a high degree of moral culpability for the offences, particularly as you clearly ignored the advice of your friends not to drive in the first place and then ignored their warnings about the presence of the two pedestrians on the road. By your contest at trial, you did not fully acknowledge your legal and moral responsibility for what happened and I must take that attitude into account when sentencing you in the context of considering your remorse.

50 Next, I accept that there has been a lengthy two year delay before the matter was resolved, which is to be taken into account in your favour, especially as there has been rehabilitation in the meantime. This was exacerbated by the unexplained delay of nine months taken for the police to lay charges against you following your arrest.

51 I have already made it clear that I consider the unwise conduct of the intoxicated pedestrians contributed to a dangerous situation and that that factor must be taken into account in your favour.[30]

52 Finally, I am satisfied that you have excellent prospects for rehabilitation, essentially for the reasons noted by the psychologist, namely, because your involvement with the legal system has been very upsetting and aversive to you; your regret and remorse for your behaviour together with appropriate empathy for the victims; your good character generally; your excellent work skills, stable accommodation and positive relationship with your partner; the absence of any signs of anti-social tendencies or other propensities towards criminal behaviour; the support of your family and friends; and, finally, your present lack of abuse of alcohol or other drugs.**

**53 There are, of course, other important sentencing considerations. The first of these is the maximum sentence provided for each offence, which stand as a yardsticks for the worst type of offending. I also need to consider current sentencing practice, which I have done, but in the end, as it is often said, every case must depend on its own facts and circumstances. Notwithstanding the combined effect of the mitigating circumstances and the importance of your rehabilitation, I consider that sentencing principles of just punishment, general deterrence, protection of the community and denunciation are of significant importance in this case.

54 Clearly, you did not intend the terrible consequences of your actions, however, yours was serious offending and I must take account of the dual basis upon which the jury acted in convicting you on the culpable driving charge. This was not a case of momentary inattention with fatal and serious consequences. Your impact speed was at least 20kph over the limit and you were seriously intoxicated. You were very confused about the situation you confronted and I am unable to find that you applied your brakes before impact. I agree with the prosecution that your objective culpability is high. And, as I have already said, so, too, your moral culpability is high, given that you ignored the warnings not to drive and then to take care about the two pedestrians. You should have been fully aware of your responsibilities as a driver, not least because your companions were urging you to drive safely. By driving in the manner you did, you also exposed your four friends in your car to the real danger of death or serious injury. There has been profound and enduring victim impact.

55 Time and time again, the Court of Appeal has emphasised the importance of general deterrence as a sentencing consideration in cases of this type, and that significant sentences of immediate imprisonment will be imposed for such offending.[31] Of, course, general deterrence is subject to the principle of proportionality and other factors are not to be excluded.[32] However, the road trauma message is loud and clear in our community, yet drivers, particularly youthful drivers, continue to flaunt it with tragic results. As the prosecution submitted, as is the case here, it often falls on the court to sentence an offending who is young, of good character, and unlikely to re-offend in the future. I consider that is another way of saying; there are no winners in this case.

56 It is rightly conceded that there should be some cumulation given that you have offended against two victims; however, I must have regard to the application of the totality principle in your favour.

57 I must cancel any licences held by you and disqualify you from obtaining another for at least twenty four months.[33] That period of disqualification may commence either on the day that the order is made or on such other later day as the Court specifies.[34] The prosecution submitted that given the specific nature of these offences, the period of licence disqualification should only commence on the date that any non-parole period is due to expire. If accepted, this would have the effect of disqualifying you from driving whilst you were under parole supervision and seeking to make your way back in the world so as to promote your rehabilitation.[35] I consider this submission unreasonably conflicts with the concession made by the prosecution that you have excellent prospects of rehabilitation. Accordingly, I do not propose to inhibit this process by preventing you from having a licence or at least the ability to apply for one, at that sensitive time in your development and I will date the licence disqualification order from today. However, I do make a finding that the offences were committed whilst you were under the influence of alcohol, which contributed to those offences.

58 Finally, on behalf of the community I strongly denounce your conduct and offending. Mr Goriainova, please stand up.**

**59 On charge 1, you will be convicted and sentenced to six years' imprisonment.

60 On charge 2, you will be convicted and sentenced to three years' imprisonment.

61 Charge 1 is the base sentence. I order that twelve months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1.

62 The total effective sentence is seven years' imprisonment. I order that you serve a period of five years before which you shall not be eligible for release on parole.

63 I declare that the period of 23 days pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the court.

64 On both charges all licences held by you are cancelled and you are disqualified from obtaining another for a period of two years, which order is to commence today.

65 I ask counsel, is there any mechanical difficulty with the sentence that I have imposed?

68 Mr Goriainova, you must go with the prison officers now. Thank you. Please remove the offender.

[1] S318(1) Crimes Act 1958.

[2] S24 Crimes Act.

[3] S318(2)(b) Crimes Act.

[4] S318(2)(c) Crimes Act.

[8] See: Mehegan T446-451, 453 and cross-examination generally, photographs of the scene (ex A) and her scale diagram (ex H), which was based on uncontested measurements and observations made by investigating police (the witness conceded she had incorrectly marked an "approximate point of impact" on the diagram based on incorrect information). The calculation of the AOC did not depend on or take account of the position where the vehicle stopped, nor did it involve the position where the deceased came to rest. The reconstructionist did not attend the scene nor inspect the vehicle.

[10] See: Mehegan T453-459, 461-468, 470-474, 476, 484-486, 487-489, 498, 500, 505 and cross-examination generally.

[11] The witness said in cross-examination (T487) that it was possible to use the stopping distance of a car as another way to calculate speed in a pedestrian collision, but that required accurate tyre marks on the road (which were not available) however the total throw distance was the most accurate primary means of impact speed calculation. The presence of tram tracks (as there were) and whether the pedestrians were facing each other or not had no relevance to the estimation of impact speed.

[12] The witness said there was no speed equation for this type of wrap/fender vault combination (T505).

[13] The SEARLES equation and the TOORS equation.

[14] See paragraph 12 above (4th bullet point).

[16] Torosoglou T185; Erdogan T197; and also Dursun T210 (although he had a limited opportunity to make observations)

[18] See Odell T336-338, 349, 350-351. The collision occurred at about 1.15am. A PBT was administered at 1.31am, which indicated a blood alcohol concentration of 0.128%, or 0.160% after correction for calibration. An evidentiary BAC conducted at 2.25am indicated a blood alcohol concentration of 0.143%.

[22] The collision was about 1.15am; police (S/C Ragg) arrived and sealed the scene at 1.24am. The only two parked cars present (marked red and purple on the scale diagram and seen in photos 5 & 6) were east of, beyond, the easternmost possible point of collision (being the marker 4, blood/wallet position). The defence speculated about a white van shown in the photos behind the car parked west of the crossing (marked green on the diagram and seen in photo 32), but the investigator rejected this and indicated this white vehicle was a police vehicle belonging to the Major Collision Investigation Unit, see: Det. Out T545-546.

[24] Shields v R [2011] VSCA 386, [31] per Whelan AJA.

[25] Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372.

[27] Barbaro v R; Zirilli v R [2012] VSCA 288, [39].

[28] R v Scholes [1999] 1 VR 337, 345, [17] per Tadgell JA (Charles and Buchanan JJA agreed).

[29] Scholes, 346, [18] per Tadgell JA.

[30] R v Tran [2002] 4 VR 457, [34], per Callaway JA.

[31] R v Withers [2003] VSCA 173, [15], per Vincent JA; R v Gany [2006] VSCA 148; Director of Public Prosecutions v Whittaker [2002] 5 VR 508, [19], [23] per Winneke P; and Director of Public Prosecutions v Hill [2012] VSCA 144, [44].

[32] DPP v Coleman [2001] VSCA 59, [20], per Tadgell JA.

[33] See the former s89(1)(c) of the Sentencing Act 1991 (the current s89 only came into effect on 30 September 2013 and accordingly does not apply here).

[34] Section 89(1)(a) Sentencing Act 1991.

[35] R v Novakovic [2007] VSCA 145, [63] - [67] per Ashley JA (with whom Nettle and Redlich JJA agreed).