DPP v Hyslop [2021] VCC 2092

2 The maximum penalty for culpable driving causing death is 20 years' imprisonment. The maximum penalty for driver failing to stop after a motor vehicle accident where a person was killed is 10 years' imprisonment or 1200 penalty units. The maximum penalty for drive whilst disqualified is 2 years' imprisonment or 240 penalty units.

3 On Sunday the 24th of May 2020, you were driving on Beach Road in Beaumaris when you veered into the bicycle lane, hitting cyclist, Deborah Locco. She died at the scene. Ms Locco was 60 years old.

4 In the days leading up to the collision, you used drugs including methylamphetamine and spent long periods of time awake with little sleep.

5 On Saturday the 23rd of May 2020, you visited a friend's house in Templestowe. You were awake all night.

6 The next morning between 8 and 8.30am, you left your friend's house saying that you had to pick up a friend and drop him somewhere.

7 At 11am, you returned to your friend's house in Templestowe. From there, you drove Courtney Snow, her 14-month-old son Michael, her 17-year-old sister Monica and their 8 year old brother to visit their mother at the hospital in Monash Clayton.

8 Following the hospital visit, you drove to a house in Oakleigh before going back to Templestowe and again to Oakleigh. Monica was in the front passenger seat.

9 According to your passengers, you were travelling to Gisborne to pick up your daughter, however at the time of the collision you were travelling southbound on Beach Road.

10 You first drew the attention of other road users whilst driving your car along Beaconsfield Parade in St Kilda. Witnesses saw your car drifting in the next lane and crossing the centre dividing line on at least two occasions.

11 As you were driving along Beach Road, Courtney asked you if you were alright to drive, and you replied that you were. Courtney and Michael both started to drift off to sleep.

12 At around Beach Road in Sandringham, other road users saw your car driving all over the road, speeding and drifting into both lanes. You stopped your car in the middle of the roundabout at the intersection of Beach Road and Balcolme Road for about 10 seconds for no apparent reason.

13 At the intersection of Jetty Road and Beach Road in Sandringham, Ian Ballantyne and his wife turned into Beach Road travelling north when they noticed your car coming towards them, crossing onto the wrong side of the road into oncoming traffic. Mr Ballantyne had to take evasive action to avoid being struck by your car.

14 During the drive, Monica noticed that you were driving faster than the other cars on the road. You continued driving southbound along Beach Road.

15 One minute and 24 seconds before the collision, you responded to a text message from your wife, texting: "I'm not long away, sorry I was asleep be there soon".

16 Moments before the collision, Monica reached over to change the song on the radio and saw you putting you head down over and over as if you were falling asleep. She saw your car swerve after you nodded off.

17 After passing the intersection of Beach Road and Deauville Street in Beaumaris, where the bicycle lane starts, your car drifted towards the left and into the bicycle lane.

18 Ms Locco was riding south in that marked bicycle lane. She had both front and rear flashing lights fitted to her bicycle and they were operating at the time. She was wearing a white jacket, black pants and a silver and pink helmet.

19 At approximately 5.17pm, you drove in the bicycle lane for approximately 30 metres before mounting a raised traffic island outside 18 Beach Road in Beaumaris. Your car continued over the grassed traffic mound, striking Ms Locco from behind and catapulting her onto the windscreen of your car and onto the road. At the time of the collision it was dusk, the conditions were clear and the road was dry.

20 As it became apparent what had occurred, you started shaking your hands saying: "I hit him, I hit him" and "oh shit, we gotta get out of here, we gotta get out of here". Courtney asked you to stop and let her out but you kept driving, appearing to try and escape a silver car that was now following you. The driver of the silver car was David Hayes-Marshall. He saw the crash and saw you trying to flee the scene.

Mr Hayes-Marshall was able to get the details of your licence plate before his wife called 000.

21 You pulled into a nearby street and grabbed two bags out of the car. You instructed your passengers to wait there as you ran from the car leaving. CCTV from nearby homes shows you running away.

22 Your passengers got out of the car and approached a house where they sought help from the occupants to call police to assist the victim. They were described as hysterical and clearly upset.

23 A number of bystanders stopped to help Ms Locco on Beach Road, including an off-duty Inspector of Police, who secured the scene and spoke with witnesses.

Ms Locco was critically injured and several witnesses sought to comfort her as paramedics arrived on scene.

24 Paramedics, with the assistance of some civilians, treated Ms Locco and performed CPR. However, she passed away at the scene. A pathologist later confirmed that Ms Locco died as a result of the multiple injuries sustained in the collision.

25 The collision was captured on the rear dash cam footage of a car driven by Trent Birch. Your car first came into Mr Birch's footage at the intersection of Beach Road and New Street in Brighton. The footage covers a period of about 11 minutes and 9.8 kilometres. In the time your driving was recorded, your car travelled in the right lane and over the broken white line into the left lane on 14 occasions. You crossed over to the incorrect side of the road on at least 4 occasions: twice over double lines and twice over a solid white line.

26 At 7.01pm, you booked a rideshare under your own name and were picked up in Highett. You were driven to your home in Armstrong Creek. Your driver stopped for fuel on the way. After paying for the fuel, he noted that you were asleep. You slept the whole way back to Armstrong Creek.

27 At approximately 11.30pm, police found you at your home.

28 At 12:36am, a road safety blood sample was taken which revealed the presence of the following drugs:

(a) Methylamphetamine - 0.67mg/l;

(b) Amphetamine - 0.18 mg/l; and

(c) Delta-9-tetrahydrocannabinol - 8mg/l.

29 The prosecution does not assert that you were driving under the influence of drugs, but rather that your drug use contributed to long periods of you being awake with little sleep in the days before the collision.

30 Police investigation of your mobile phone reveals that in the six days before the collision, there was only one night where your mobile phone was not in use between 10pm and 7am.

31 In a report dated 10 October 2020, Professor Matthew Naughton, a respiratory and sleep physician opined that based on your mobile phone usage, the time available for you to sleep in the 13 days before the collision was highly erratic, characterised by only short periods of potential rest time.

32 Your level of sleep deprivation would have seriously impaired your capacity to drive. Professor Naughton estimates that the severity of sleepiness in this case would cause similar impairment to a person's co-ordination and skills required to drive a car as someone with a blood alcohol level of 0.2 grams of alcohol per 100mls of blood.

33 You claim to have no memory of the collision and cannot offer an explanation as to why you were in the Beaumaris area.

34 I have had regard to your plea of guilty in moderating your sentence. You pleaded guilty at the earliest opportunity. I accept that by your plea of guilty you have saved the community the cost of running a trial, spared witnesses the stress of giving evidence and facilitated the course of justice.

35 I accept your plea of guilty is consistent with remorse for your actions, although evidence of remorse is limited. I will return to the question of remorse later.

36 I have had regard to the Court of Appeal's comments that a plea of guilty entered during the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not impacted by the pandemic.[1]

37 Total pre-sentence detention in this matter is 564 days.

38 You have a criminal history which began in 2002. Your prior convictions can be broadly grouped into driving offences, dishonesty offences and offences deriving from intervention orders and family violence.

39 You have four prior convictions for driving without a valid license, for which you received fines, a suspended sentence and a community correction order. Your counsel, Mr Marsh conceded that these prior convictions and the current circumstances demonstrate that you have had scant regard for the status of your licence when deciding to drive.

40 You have prior convictions for both careless and dangerous driving, for which you were fined. In 2019, you received a sentence of 4 months and 4 days at the Horsham County Court for a variety of dishonesty and intervention order offences. You have also failed to answer bail and breached community based dispositions.

41 Mr Marsh conceded that specific deterrence has a role to play, however the current circumstances represent a significant escalation in offending.

42 I agree with Ms Churchill's submission that your poor driving record is an important sentencing consideration in assessing your moral culpability, prospects of rehabilitation, and the weight to be given to the principles of specific deterrence, denunciation and community protection.

43 Specific deterrence is an important sentencing consideration in your case. Penalties previously imposed on you have not dissuaded you from offending. However, this will be your first sentence of imprisonment of significant length.

44 You have a number of outstanding summary charges from 21 March, 17 May and 25 May 2020. These charges include driving while suspended, exceeding the speed limit by 15kms per hour, possessing cannabis and drugs of dependence and dealing with proceeds of crime. Mr Marsh indicated that you will plead guilty to these charges.

45 Your personal circumstances are set out in detail in the report of Mr Patrick Newton, Clinical and Forensic Psychologist dated 6 November 2021, to which I have had regard.

46 You are 37 years of age. Your early childhood was unremarkable. Your parents had a harmonious relationship. You and your two older brothers did not experience hardship.

47 You were an average student. You left school part-way through Year 11 and started work in practical vocations: automotive mechanics, plastering, factory work, traffic control and fencing.

48 You have had one significant relationship. You met your now ex-wife at age 15 and describe her as your "high school sweetheart". You have three children together, currently aged between 11 and 18. Your eldest child suffers from haemophilia.

49 In 2017, your marriage ended abruptly when your wife left you. You failed to cope with this emotionally, which is evident from the escalation in your criminal behaviour. Mr Newton notes your preoccupation and rumination with the circumstances of your marriage breakdown in his report.

50 While you previously used cannabis recreationally, you began to use both cannabis and methylamphetamine to excess after your marriage breakdown. Typically, you would 'binge' on methamphetamine for days before 'crashing', then repeating the cycle.

51 Between the time of separation and the commission of these offences, your three children lived with you. Your wife had no contact with the children for 12 months after the separation.

52 Your eldest child now lives with his grandparents in Werribee. His haemophilia is managed by medication. He is estranged from his mother, having struggled with the separation. Your other two children live with their mother in Echuca. You speak to your children every day.

53 You report that you and your ex-wife have an amicable relationship that is focused on the best interests of the children. Your family remain supportive of you. Your mother and father have written letters of support, to which I have had regard and to which I will refer in due course.

54 Victim Impacts Statements were received from Tahnee Freyer and

Christopher McAlinden, who both witnessed the collision, and from David Locco, Ms Locco's son.

55 Ms Freyer writes about the significant impact of the traumatic event, including the trouble she has concentrating and working. When she sees erratic driving, the trauma, distress and emotions come flooding back, and she does not feel safe on the roads. She still thinks about the collision to this day.

56 Mr McAlinden still feels anxious when driving and walking roadside. He feels unsafe on the road and to an extent, this inhibits his ability to enjoy life. He is fearful of himself, friends or family being involved in a car accident. He feels he is less productive as an on the road salesperson.

57 Ms Locco's son David describes the close relationship he had with his mother. They lived in the same house for over 30 years, seeing each other every day and sharing dinner as a family every night. He wrote that your crime has not only deprived [him] of [his] mother but also of the grandmother to his son. He describes his mother's loving attention to her grandchild, that special relationship now gone. He also describes losing the chance to talk, walk and ride with his mother.

Mr Locco can no longer bring himself to walk each night or ride on Beach Road. He has lost confidence in other cars and drivers. He wrote "The night of the crime I had to drive along Beach Road looking for someone who never returned home. It's something nobody should have to endure."

58 Culpable driving causing death is one of the most serious offences to come before the County Court of Victoria. The maximum penalty is 20 years' imprisonment. The objective gravity of the offence is also reflected in it being an offence to which the standard sentencing regime applies and a Category 2 offence under the Sentencing Act 1991. As a Category 2 offence, I am required to impose a custodial sentence unless one of the exceptions apply.[2] It was not contended on your behalf that any exceptions apply.

59 Failing to stop and render assistance is also a serious offence, reflected in its maximum penalty of 10 years' imprisonment.

60 General deterrence and denunciation are significant sentencing considerations in respect of these offences.

61 Mr Marsh conceded that your offending does not fall at the lower end of the spectrum for culpable driving causing death. It was not momentary recklessness, or inattention for a brief period of time. You drove, impaired over a significant period of time. You drove erratically and at excessive speed, frequently veering into oncoming traffic. Your high level of fatigue was known to you as you had been awake and active for long periods of time due to methylamphetamine use.

62 On the other hand, Mr Marsh submitted your offending does not exhibit multiple indicia of culpability seen in other cases including deliberate speeding, high levels of intoxication, drug use together with, for example, drag racing. He said it lacks the character of flagrantly and deliberately placing people in harm that characterises higher end examples. There is one indicia of culpability and that is extreme fatigue. It falls somewhere between the two extremes.

63 In relation to charge 2, Mr Marsh submitted it is a separate episode of criminality that sits alongside the culpable driving charge but does not aggravate it. Your offending in relation to charge two is, he said, a lower end example. It was unsophisticated and impulsive. You were always going to be identified and your arrest was inevitable. This is unlike cases where a person goes to some lengths to frustrate police attempts to find the car. The car was registered in your name and there were people in the car that would readily identify you.

Mr Marsh recognised, however, there was a degree of callousness that is difficult to ignore.

64 Ms Churchill submitted that taking into account the totality of the circumstances, the offence is at least mid-range. The assessment of the dangerousness of your driving is informed by the extent of the risk which it created. The extent of the risk includes both the likelihood that something will go wrong, and the extent of the harm which would result if it does. Your offending is serious given the nature of your driving, its duration and the degree of risk created to other road users and your passengers. The risks associated with your level of fatigue were grave.

65 Ms Churchill did not take issue with the characterisation of your conduct in fleeing the scene as unsophisticated. However, she submitted it is apparent you knew you had struck somebody. The objective gravity of fleeing the scene in the interest of self-preservation with little regard for your victim or your young passengers places this above the low end.

66 In my view, your offending is indeed serious. The dashcam footage is disturbing in its illumination of just how likely it was that something would go wrong. There were opportunities for you to stop but you kept going. Mr Marsh conceded the dashcam footage of your driving is consistent with you having fallen asleep before the point of impact.

67 The risk of harm materialised with catastrophic consequences. Ms Locco's death is solely attributable to your actions in driving your car while impaired by fatigue to a significant degree.

68 Whilst your attempt to flee might properly be described as disorganised, unsophisticated and impulsive, and your arrest inevitable, it reveals a callousness that is difficult to fathom. The dashcam footage shows you accelerating to get away. It is quite clear from the footage of you fleeing the scene that you were doing so with some awareness of what had happened.

69 In assessing your moral culpability, a relevant contextual factor is the background to your fatigue. You had been on a significant drug binge that rendered you incapable of driving safely.

70 Mr Marsh submitted that whilst it is a relevant contextual factor, it does not aggravate your offending beyond the creation of the level of fatigue which meant you could not drive. Whilst your insight into your degree of impaired functioning was likely diminished, Mr Marsh conceded that does not justify your decision to drive in the first place.

71 Ms Churchill contended the fact your fatigue was attributable to ongoing methylamphetamine use has to feed into an assessment of moral culpability. You have a higher level of culpability given the way in which you arrived at being fatigued. This may be distinguished from, for example, someone driving for extended periods to put food on the table.

72 I consider your moral culpability is high. You ignored several warnings that you were incapable of driving safely. Your passenger questioned whether you were okay to drive. You drove for a long period of time where you crossed over onto the incorrect side of the road and yet you continued to drive. Having spent long periods of time awake in the lead up to the collision, you must have been aware you were heavily fatigued.

73 Mr Marsh contended that although you have a history of recreational cannabis use and other driving offences dating back to 2002, your illicit drug use was the result of failing to cope emotionally with the breakup of your marriage. I accept that your drug use spiralled after your wife left you, however your disregard for your obligations as the holder of a licence to drive, a privilege, dates back to when you were on L plates at the age of 17. You have an appalling driving record. It shows an entrenched disregard for others and a lack of respect for your obligations as the holder of a licence.

74 You told Mr Newton that, despite losing your licence, you continued to drive as usual to carry out your day-to-day activities for personal enjoyment despite knowing that you were suspended from driving.

75 Your self-centeredness is evident in your response to the collision. You left

76 Mr Marsh submitted your prospects of rehabilitation are open, if not good. You have the support and love of your family. They will be there for you. The references written in support show that you are capable of generosity and kindness and of earning the respect of people in your life.

77 Ms Churchill referred to Mr Newton's report in which he noted your insight into your drug use remains at best intuitive and piecemeal, limited and superficial. There appears to have been very little intervention of any sort to address your drug use and no focus on the maladaptive personality traits which have underpinned your addiction. He reported an inability for you to discuss the content of educational programmes in which you have participated in any meaningful way. Mr Newton is sceptical about any benefit which you may have derived from them.

78 I consider your prospects of rehabilitation, whilst open, are guarded in light of your lack of insight and remorse as evident in Mr Newton's report. You could provide no rationale for driving on the day of the collision. You could articulate only a superficial emotional response to the collision, perhaps reflecting the reported absence of any memory of the event. Mr Newton considered that your emotional response to the collision was superficial, glib and self-centred. These are factors which likely reflect personality vulnerabilities on the narcissistic spectrum made more salient by your lack of recollection for the collision and its aftermath.

Mr Newton said your moral reasoning is pragmatic, self-centred and instrumental in its focus, but there is no indication to suggest that you have been incapable of understanding the wrongfulness of your conduct or its likely consequences.

79 There are little, if any, signs of remorse evident in the report, as conceded by

Mr Marsh. Your level of preoccupation with your marital breakdown, in respect of which you see yourself as having been sorely wronged, points to the likely presence of significant personality vulnerability according to Mr Newton. This is further illustrated by your response to the range of charges for breaching family violence intervention orders. You consistently downplayed the significance or intensity of those events. I accept however your genuine concern for your children's welfare, a concern which you nominated as your primary worry and the dominant content of your preoccupation.

80 Your father wrote a letter to the Court. He said you have sent letters expressing your remorse for Ms Locco's death, sadness felt for her family and the disgrace you feel. He said that you are a very loving and caring person who would do anything for anyone and nothing was ever too big or too small. Something changed in you some years back and the person that committed this offence is not his son Christopher, the son he knows and loves and he will always support.

81 Your mother wrote with sadness in her heart for the family who has lost a very special member. She wrote about your focus on your children. It makes her sad that she could not do more to help you. I have had regard to the other references, which also speak of qualities that are otherwise not evident in this tragic situation.

82 I have had regard to the fact that you have been remanded during the most difficult periods of the pandemic response, during which access to programs, employment and visits have been severely curtailed. You have also been subject to lengthy periods of close confinement in your cell.

83 Despite these limitations, you have been productive in custody. You work in the laundry and metal fabricating shop. You have an essential working prisoner classification and have worked throughout the pandemic.

84 You have a genuine concern for the welfare of your children, which I accept weighs heavily on you.

85 Culpable driving causing death is a standard sentence offence.[3] A standard sentence offence is one where the Sentencing Act 1991 specifies the appropriate sentence for an offence in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.[4] Objective factors must be determined wholly by reference to the nature of the offending, and without reference to matters personal to a particular offender.[5]

86 In the case of culpable driving causing death, the standard sentence is 8 years' imprisonment. The Court of Appeal has warned that the standard sentence is not a starting point from which the sentence is adjusted upwards or downwards as a the case dictates.[6] It is simply another factor to be considered in the application of the instinctive synthesis.[7]

87 I have taken the standard sentence into account as one of the factors that is relevant to the instinctive synthesis in imposing sentence. As with the maximum penalty, it is a legislative guidepost.

88 I must state how the sentence imposed relates to the standard sentence. The sentence I will impose in respect of the charge of culpable driving causing death is higher than the standard sentence. Having identified, considered and referred to the relevant factors in assessing the sentence, including my assessment of the objective gravity of the offending, your moral culpability and the matters available in mitigation, I have formed the conclusion that the sentence I will impose is appropriate.

89 I am obliged to have regard to current sentencing practice in determining your sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym)[8] that current sentencing practices are but one of the many factors that must be taken into account in sentencing.

90 The Court is precluded from having regard to sentences imposed for the offence of culpable driving prior to the commencement of the standard sentencing regime. For this reason, Snapshot 250 of the Sentencing Advisory Council has limited utility.

91 I have had regard to the cases provided to me by counsel.[9] It must be borne in mind that every case is different, and the court must have regard to the individual circumstances of each case, which is what I have done.

92 For a standard sentence offence, I must fix a non-parole period which is at least 60 per cent of the total effective sentence unless it is in the interests of justice not to do so.[10] Neither party submitted, and I do not consider, it is in the interests of justice not to do so.

93 Charge two is a separate offence and represents different criminality. I have taken care not to aggravate the culpable driving charge. Mr Marsh conceded some cumulation is warranted, although totality is a relevant consideration and one to which I have had regard.

94 In respect of the period of disqualification, I have considered the submissions made on your further plea and the principles in The Queen v Lefebure & Lefebure[11] have balanced all of the factors referred to, in particular your lengthy history of driving offences against the possibility and desirability for your rehabilitation whilst under supervision.

95 In fixing your non-parole period, I have had regard to Mr Newton's opinion that your self-centeredness and lack of insight puts you at an elevated risk for relapse to drug abuse whenever the level of supervision and structure in your life is reduced. As such, close supervision will be vital at that time. A sentence structured in a way as to provide you with a meaningful period of supervision will further the protection of the community.

96 I have also taken into account the support of your family, your work history and that you will have had years of abstinence in custody.

97 Nevertheless, there is a need to send a message that the community will not tolerate driving by a person in the circumstances in which you drove. As I have said, general deterrence is a significant sentencing consideration along with denunciation and just punishment.

98 Warren CJ in R v Franklin observed that: "What is so striking about these cases is that one moment in time can have such devastating consequences."[12] Your drug binge over days led to fatigue. Your impaired driving over a significant period of time while fatigued led to that one moment in time in which you ended Ms Locco's life, devastating both her family and yours.

99 Having carefully considered, balanced and weighed all of the matters referred to on your plea, the material relied upon in support and the relevant sentencing principles, I sentence you as follows:

100 On charge 1, culpable driving causing death, I sentence you to a term of imprisonment of 9 years.

101 On charge 2, driver failing to stop after a motor vehicle accident where a person was killed, I sentence you to a term of imprisonment of 3 years.

102 On the related summary offence, drive whilst disqualified, I sentence you to a term of imprisonment of 6 months.

103 Charge 1 is the base sentence. I direct that 6 months of the sentence for charge 2 be served cumulatively upon the sentence for charge 1.

104 The total effective sentence is a term of imprisonment of 9 years and 6 months.

105 I direct that you are to serve 6 years and 9 months of your sentence before being eligible for parole.

106 I declare that there are 564 days of pre-sentence detention to be reckoned as having been served.

107 Pursuant to section 89(2) of the Sentencing Act, you are disqualified from obtaining a licence for a period of 5 years. Pursuant to section 89B of the Sentencing Act, the period of disqualification is to commence on 10 December 2024.

Section 6AAA declaration

108 Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 12 years with a non-parole period of 9 years and 6 months.

109 HER HONOUR: Any matters Mr Marsh or Ms Churchill?

110 MR MARSH: Your Honour can I make this inquiry, is it your intention to publish your sentencing reasons in this matter?

113 MS CHURCHILL: Nothing further from me Your Honour.

[1] Worboyes v The Queen [2021] VSCA 169, [35].

[2] Culpable driving causing death is a Category 2 offences if it was committed on or after 28 October 2018

Sentencing Act 1991 (Vic) s 3.

[3] Culpable driving causing death is a standard sentence offence if it was committed on or after 1 February

2018. Crimes Act 1958 (Vic) s 38(3).

[4] Sentencing Act 1991 (Vic) s 5A(1)(b).

[5] Ibid s 5A(3).

[6] Brown v R (2019) 59 VR 424; McPherson v R [2021] VSCA 53.

[8] [2017] HCA 41; (2017) 262 CLR 428.

[9] List of culpable driving standard sentence cases at 16 November 2021.

[10] Sentencing Act 1991 (Vic) s 11A.

[11] [2000] VSCA 79.

[12] [2009] VSCA 77, [12].