DPP v Kent [2020] VCC 991

1. The prosecution opening dated 19 March 2020, Exhibit A, was accepted by Ms Lloyd as being the facts upon which I am to sentence her client, Ms Kent. As to the collision, unfortunately the circumstances, are tragically stark and too often repeated in this Court. In 2009, the then Chief Justice, Marilyn Warren, in R v Franklin [2009] VSCA 77, [12] said: -

'Cases of culpable driving continue to come too frequently before the Courts. What is so striking about these cases is that one moment in time can have such devastating consequences...'

1. Ms Kent, each member of the Hughes family and her friends, being the victims, have suffered a profound sense of needless loss at your hands. Pursuant to s.5(2)(daa) of the Sentencing Act, I must have regard to the impact that your offending has had on the Hughes family and her friends. Returning to Franklin, in the same paragraph, the Chief Justice went onto say: -

'...culpable driving is punishable by 20 years' imprisonment. Such a severe maximum penalty reflects the gravity of the offence and the culpability of the perpetrator'.

1. It is to be noted that the Parliament, in order to deter this crime, increased the penalty to 20 years in September 1997. Despite such, and the pronouncements that I have referred to, of the Chief Justice, such crimes have not stopped. This Court unfortunately continues to deal with such crimes and the trauma rendered thereby in the community. Each week, I am sure, members of the community read of the consequences of these crimes and the sentences passed in this Court.
2. Coming back again to Franklin, the Chief Justice also said, as to culpable driving the following:

'Sentences reflect the gravity of the offences. Parliament's intention and the community's expectation at such offences will be dealt with sternly'. [22]

1. And further at [32], she however warned Judges who have the unenviable task of sentencing in these matters, that:

'Adherence to general deterrence ought not result in a sentence that would be crushing'.

1. Ms Hughes was a passenger in the Rodeo Ute driven by Ms Kent on this morning. Because of the ingestion of methamphetamine, commonly called ice, at what the forensic specialist, Dr Sungalia, said was a extremely high level, Ms Kent lost the ability to control her vehicle and to drive competently or safely and/or such led to negligence in the manner in which she traversed a bend in the Melba Highway. Hence by way of a combination of those factors, Ms Kent drove the car culpably causing Ms Hughes' death.
2. By way of background, they had been travelling together from some time in the later hours of Friday 4 May 2018, when on a trip to Melbourne to purchase methamphetamine. Apparently a purchase was made for $2,500 of 14 grams of methamphetamine, which was subsequently located in the damaged car, in a secret stash. That is, it was located after the accident.
3. Having purchased the drugs in Melbourne, on returning to Mansfield, some time later, times obviously are difficult to be precise about, but at approximately 2:30 am on the Saturday morning, that is 5 May 2018, the car driven by Ms Kent failed to traverse a slight right hand bend in the road. The car travelled off the road under heavy braking, skidded, mounted a dirt mound and became airborne, travelling approximately 13 metres horizontally, before dropping vertically, five metres into a gully below, coming to rest, nose first with its tail pointing skyward. As to this particular accident and those details, the prosecution tendered Exhibit B which are the photos, they give stark evidence as to the circumstances of this accident. I used the word tragic earlier. As Ms Kent herself said, in response to being told of Ms Hughes' death, 'We were friends', that is in the depositions at p.146, indeed in the hospital notes, she said 'We were best friends'.
4. As a result of this crash, Ms Kent suffered serious injuries, a pneumothorax and a hemothorax. She suffered multiple fractures to the sternum, two ribs, sacrum and left foot, requiring operative treatment to treat the open traumatic wounds, indeed because of the pneumothorax and hemothorax to in fact save her life. This resulted in a loss of function of her legs, whereby, after eleven days in hospital, she came out in a wheelchair and spent some six weeks in rehabilitation thereafter at the Epworth. Fortunately with the skill of the doctors, she has had a relatively good recovery physically, however, she continues to have persistent pain for which she takes various medications. The depression, which she has suffered for many years, pre-accident, was unfortunately exacerbated by her realisation of the consequences of what she did this night.
5. Albeit severely injured, somehow she scrambled back up to the road from the position where the car had ended, to seek help. However, such efforts by the persons flagged down were unfortunately far too late for Ms Hughes. I must say, considering her injuries, what Ms Kent achieved in seeking help for her, unfortunately by then, dead friend, is amazing. As she said to a CFA volunteer at the scene, and I use her words, 'It's all fucked up. I'm all fucked up on drugs'.

1. I come then to consideration of the issue of criminal culpability. The circumstances in this regard are as follows. Ms Kent was driving at night on a two lane, two way, country highway, well known to her, which had a temporary speed limit of 40 kilometres at this point, because of works going on at the bridge. She was driving her car while under the influence of ice, so as to be incapable of having proper control of her car. It was conceded by her counsel at [35](a) of Exhibit 1, that Ms Kent's level of drug concentration was at the higher end of the scale. As a result of such, she failed to appropriately control the car travelling towards what was a clearly marked right hand bend. As the learned prosecutor quoted in Exhibit D, Priest JA said in Pasznyk v The Queen, [2014] VSCA 87; [2014] 43 VR 169, [182], [68] as follows:

'It would be fatuous to suggest that any person in the community in the present day did not understand the very great risk to life and limb posed by people driving whilst intoxicated'.

1. Of course, this crime is, as I have already said, marked for its seriousness by the fact that Parliament has prescribed a 20 year maximum. Further, more recently, Parliament has prescribed it a category 2 offence under the Sentencing Act, which requires a custodial sentence unless a special reason applies. Under the Crimes Act, s.318(1)(a), a standard sentence of eight years has been prescribed for the offence and a standard non-parole period of 60 per cent of the sentence prescribed, under s.11A(4).
2. Pursuant to s.87 of the Road Safety Act, such an offence is also prescribed as a serious motor vehicle offence for the purpose of dealing with a person's licence so convicted. I must take the standard sentence into account as one of the relevant factors in sentencing you, Ms Kent, as I do, s.5A, s.5B and s.11A of the Sentencing Act. The Parliament has thereby taken into account the terrible consequences of such crimes. Of course, as well as those matters, they being only one factor, I take into account all principles set out in s.5 and all relevant sentencing principles.
3. As the above quotation of Priest JA points out, this driving has caused, the death of Ms Hughes and the trauma demonstrated by her family and her friend in Court, in particular, see their written victim impact statements, Exhibit C.
4. On the spectrum of offending for this charge, I classify the objective gravity and your moral culpability as high for this offence. I reject therefore the assessment submitted by Ms Lloyd of which she termed middle range, accepting, however, that the aggravation she spoke of in [36] of her submission, was not present. Albeit Ms Hughes having a reading of ice in her blood double that of Ms Kent, given that she had a seatbelt on, there was no submission on a Spanjol basis, that there was any other contributing cause for Ms Hughes' death, but for the condition and the driving of Ms Kent.
5. As agreed, the pre-sentence detention served to date by Ms Kent is 723 days. Ms Kent also has relevant priors, although none of which have led to a gaol sentence. However, of concern as to the culpable charge, considering its elements, is a conviction in May of 2017 of drive while having a prescribed concentration of drug in the blood. She lost her licence on that occasion for three months. It should be pointed out that such conviction was only twelve months before this accident. I also note, and I do not know whether it is associated with a car, but she has a prior conviction, sometime ago of course, in November 2007, for reckless conduct endangering serious injury. She also has relevant offences insofar as Charge 2, for trafficking in the Magistrates' Court. Such conviction being recorded in January 2018, which again significantly was only four months before this offending, for which she received a community corrections order of twelve months, which obviously she has breached by this offending.
6. Concerningly, Ms Kent also has a prior in January of 2018 for possession of a prohibited weapon. I make the point Ms Kent that in rehearsing your priors, you are not subject to any additional sentencing in regard to them. They go to a consideration of the totality of sentencing here, and particularly, in the drug charge, to the issue of specific deterrence. They may, depending on consideration of all the other factors, have some role in limiting the sentence which I can pass. However, given the impact of standard sentencing provisions, they have a fairly limited role in this case.

1. I come now to talk of the impact of this driving and Ms Hughes death upon her family, and friends. This was referred to by Vincent J, under the heading of 'Social Rehabilitation', in R v DJK, [2003] VSCA 109, [18] where he said: -

'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded and/or facilitated by the response of the Courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by a society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator'.

1. This Court has heard read out, respectively by Ms Hughes' mother Robyn, father Jim, brother Brandon, sister Naomi and her friend Danielle Reading, the impact of the loss of their loved one. Such experience, no doubt for each of them, was very emotional. They were very brave to make those statements. Having re-read those statements, in particular from the family, it is of course gut wrenching to hear the impact upon the life of Ms Hughes' young daughter Stella, who unfortunately not long before losing her mother in this accident, had lost her father. Her life, no doubt will be affected forever, but she is very lucky to have a family who will continue to assist and remind her of her own mother.
2. Because of the tragedy surrounding Charge 1, Charge 2 did not have a lot of attention in the plea. However, the 15 years maximum penalty prescribed by Parliament indicates it's seriousness. As said by the Court of Appeal in Gregory [2017] 268 A Crim R 1 and Fernando [2017] VSCA 2018 the maximum sentence in regard to drug offending needs to be kept in sharp focus by Courts. On the authorities, any role brings with it the need for condign punishment, that is, where you are trafficking in drugs, R v McLeish (1982) 30 SASR 487, [492].
3. The role here is serious. Apparently, as best as I can understand it, Ms Kent has driven down to Melbourne to purchase drugs, to satisfy her own addiction, and, to supply persons with such drug in or around the town of Mansfield. To do that she used a sophisticated system, to the extent that, there was a stash, which had been manufactured and was placed under the car, where the drugs were placed. She also had a tracking device on her car, but I am not aware necessarily of whether that had any connection. However, it is somewhat unusual.
4. In assessing her role, apart from it being obviously serious, she is not a principal, in the sense that she is going to Melbourne to buy from someone higher up the chain. But in the sense of trafficking, in or around Mansfield, clearly she is acting as a principal. Although I accept, she is not at the top of the tree. She also has a prior to which I have referred to. I refer to the recent statements of the Court of Appeal in DPP v Condo [2019] VSCA 181, [22], where it notes that trafficking in methamphetamine is prevalent and that general deterrence needs an increase in weight, where a person makes profit from supplying a harmful product to the community. I also accept in that the aggravation from a person acting solely for greed does not apply because part of her motivation, was to service her own long term addiction.

1. I then come to the plea of Ms Lloyd. Ms Lloyd tendered firstly, an outline of her plea submissions, Exhibit 1. The psychological report of Ms Maynard dated 29 January 2020 and the addendum report dated 30 January 2020, which was Exhibit 2 and 2A and Exhibits 3 and 4, which were letters of support, from her friend Geraldine Jones, her step-dad Mr Hornery and her mother, Helen McKenzie. They provide strong support for Ms Kent.
2. In her submission as to the personal circumstances of Ms Kent, Ms Lloyd referred in particular to [4] to [19] in the Maynard first report. It is clear that Ms Kent has had unfortunately, in her own life, a dislocated childhood. She has been subject to difficult relationships with males and indeed, abusive relationships. She is in a situation now where of her three children, she is only in contact with one. As a consequence of her upbringing, she has had an interrupted education and essentially has had employment, when she has been able to get it, of a manual labouring type.
3. Insofar as that background is concerned, I do take into account, by way of explanation, the principles set out in the case of Bugmy v The Queen [2013] HCA 37. However, I do not take into account those principles in any reduction of culpability for either crime. Of course of most relevance insofar as her personal circumstances is her substance addiction. In Exhibit 2,

Ms Maynard's report notes that Ms Kent has been addicted to methamphetamine for the last six years, prior to the accident.

4. Ms Kent has suffered depression related to her upbringing, unsuccessful relationships and in particular, to her addiction to methamphetamine. That depression was aggravated by the accident. This was brought about not only by her general remorse, but the loss of a friend and the additional remorse involved and the development of post-traumatic stress disorder thereafter. In Exhibit 2(a), the diagnosis made at p.7 by Ms Maynard is one of persisting complex bereavement disorder, a stimulant use disorder, drug addiction. It was the view expressed in that report, that provided Ms Kent, had the appropriate treatment and continued to abstain from drugs, her rehabilitation should be seen positively.
5. I quote from p.2 of the addendum report dated 30 March 2020, Exhibit 2(a), as to her time in gaol, in particular, the third paragraph which says as follows:

'In my opinion, Ms Kent will find imprisonment more onerous upon her, in comparison with someone who does not suffer from the conditions that I have already referred to. Often with anxiety and trauma disorders, when a person who is less in control of their environment, the person's mental health deteriorates further, with higher levels of anxiety and their normal coping responses removed. It is my opinion that Ms Kent's grief symptoms will also weigh very heavily upon her in custody. Her environment being a constant reminder of Ms Hughes' death. A lengthy term of imprisonment will likely be very difficult for Ms Kent to manage, given her mental health conditions have been quite chronic and long term'.

1. It is noted that there is no dispute from the prosecution, with the submission from Ms Lloyd, that the principles 5 and 6 of Verdins [2007] VSCA 102, [32], are established upon the evidence and need to be taken into account in this sentence. The only reservation Ms Ellis had was that it was necessary for me to note that the depression was already pre-existing. As best I can, I have balanced that factor, that is, principles 5 and 6, and taken it into account given the seriousness of these crimes. It has had particular impact, insofar as the minimum term that I intend to impose. I also note, as pointed out by Ms Lloyd, that this is the first time in custody for Ms Kent.
2. Other factors put by Ms Lloyd were the extra curial punishment that has been endured by her client. I have already referred in some detail to the injuries Ms Kent suffered and her particular remorse at the death of her friend. On the principles set out by Ms Lloyd in some detail, in her submission, I accept that appropriate discounts for such should be made in this case. I have also noted that Ms Kent has been in protection to date while in gaol, as a result of some form of threat. I do not in any way dismiss those, nor the fact that she needed protection, but I would assume, with the social rehabilitation effected by this sentence, those threats will no longer be a problem for Ms Kent.
3. The principles brought about the current crisis this community is going through, obviously have to be taken into account, on the principles detailed by the Court of Appeal in Re Broes [2020] VSC 128 and Re McCann [2020] VSC 138. I accept that when she is in gaol, which she would already experiencing, she has the risk if COVID ever gets in there, fortunately it has not happened yet. She has had to suffer lockdowns and of course restriction of visitors, and that will continue while we have the COVID crisis. I do take those matters into account.
4. As to mitigation, Ms Lloyd again referred me to a number of matters. Firstly being Ms Kent's cooperation, admissions and her plea. I do accept that a discount is appropriate because of the utilitarian benefit of her actions and the assistance to justice that they have provided. I also accept that her remorse is genuine. I have read Exhibit 5, her own letter, a number of times. I do accept that her feelings, which have been detailed by the psychologist, are genuine. In particular, the impact upon her personally, and her knowledge of the impact that the death that she has caused has had upon the Hughes family, in particular, Ms Hughes' daughter.
5. Ms Lloyd pointed out that there were perhaps issues that could have been taken, if this matter had gone to trial. I share the prosecutor's view that this matter was never going to trial. However, the issue as to what role methamphetamine plays, and the question of whether it has a stimulant or sedative effect and the difficulty of proving that in a trial, as demonstrated from the questioning of the forensic specialist at the committal, are such that there could have been some issue. But as Ms Lloyd says, her client was adamant, despite being advised accordingly, that this matter would proceed as a plea.
6. As to her rehabilitation, it was submitted on the basis of the material before me, that I should take into account her intent as set out in her letter, and the dramatic impact of gaol, which she knows she is going to get, especially never having been to gaol before, given her age. And further, that such punishment will in fact save her from going back to drugs, the Court can be positive. She has indeed great support, in particular I note, the very supportive letter of Ms Jones. I accept the expert's views, but the Court has to take a view that one is guarded in this regard.
7. I was provided with a list of cases, however, as Ms Lloyd noted, s.5(b)(2)(b) limits what consideration I have. I have taken account, Panayides [2019] VCC 1849, in which I was the Sentencing Judge, Lim [2018] VCC 2166, which was a sentence of Judge Lacava and Victorsen [2018] VCC 2202, a sentence of the now retired Judge Chettle.
8. Ms Lloyd provided me with sentencing statistics, prior to the introduction of the standard sentencing, the Sentencing Council's Booklet No. 225, the median sentence at that stage being six years. Equally, it seems to me, that as one cannot take account of the cases prior to the introduction of such scheme, one clearly cannot take account of the statistics, except in the most general way.
9. The objective seriousness Ms Kent of your culpable driving, leads the Court to conclude that a sentence higher than a standard sentence should be imposed for this crime. As I have said in imposing the sentence for both of your crimes, I take into account all relevant factors. As was pointed out by the quote that I rehearsed of Chief Justice Warren, when I started these remarks, totality is a very important matter. It is also important, despite the gross effect of death upon the family, that one still has to ensure that one does not pass a crushing sentence. As the High Court said in Dalgliesh [2017] VSCA 360, [64] to [68], you are, Ms Kent, entitled to a just sentence, based upon all the circumstances of this case. If I might say, Ms Lloyd has been at pains to put those circumstances to this Court. I thank her for her assistance in a case that has not been easy, as I do thank Ms Ellis.

1. As has already been conveyed to you, no sentence will satisfy, in that your family member Amber Hughes is unfortunately no longer with you and is lost forever, not only to you, but to her daughter. However, you have been present now, not only to give your own victim impact statements, but to have the benefit of hearing the various factors that come before a Court, that has to sentence a person for this crime, which are put before the Court not only by the prosecutor, but by counsel acting for Ms Kent.
2. In regard to these crimes, general deterrence is particularly important, denunciation of the crimes, the need for just punishment and of course, the will of Parliament, has to be taken into account in the totality of the synthesis to devise an appropriate sentence. Given your priors, that I have referred to, not only general deterrence is important in the sentencing, but in particular, in Charge 2, specific deterrence is also important.
3. Ms Kent, as I have already indicated at this stage, if we were in a normal situation, I would ask you to stand up while I pronounce sentence. It is not necessary for me to do that with you, however, I do intend now to pronounce sentence.
4. On the first charge of culpable driving, you will be sentenced to gaol for nine years. On the second charge, that is the drug related charge, you will be sentenced to gaol for two and a half years. Using Charge 1 as the base sentence, that is the nine years, I order that nine months of the sentence imposed on Charge 2 be cumulated upon Charge 1, making a total effective sentence of nine and three quarter years. As to the period that you must serve before being eligible for parole, I order that you serve five years gaol. Insofar as the pre-sentence detention that you have already served, that is 723 days, I declare that such service be deemed part of sentence and that a copy of such declaration is to be recorded in the records of this Court.
5. Such minimum non-parole period such does not comply precisely, as best as my maths are concerned, with the will of Parliament as detailed in s.11A(4)(c). However, because of the totality of the factors that I have referred to, such leads me to conclude that would it would not in the interest of justice to apply such dictated parole formula to charge one alone.
6. Insofar as the loss of licence under the Road Safety Act, pursuant to s.89(1) of that Act, your licence is cancelled and you are disqualified from obtaining a further licence for 24 months from 9 July 2018. I have signed the forfeiture and disposal orders.
7. I am required by Parliament to set out for you the benefit of having pleaded guilty, pursuant to s.6AAA of the Sentencing Act. It really is almost impossible in a case such as this being so multifactorial to comply with Parliament's wish. However, doing as best I can, Ms Kent, had you not pleaded guilty, the sentence I would have prescribed is not one of nine and three quarter years, with a minimum of five years before parole, but it would have been a sentence of twelve years, with a minimum of seven and a half years.
8. Madam Prosecutor, anything I need to attend to that I have not?
9. MS ELLIS: No, Your Honour, I don't believe so.
10. HIS HONOUR: Ms Lloyd?
11. MS LLOYD: No, Your Honour. As Your Honour please.
12. HIS HONOUR: Yes Ms Kent, I wish you well. You are already in gaol, so there is not much more we can say. You will be able, as will the Hughes family, to get in due course a copy of these remarks. As I said, it is unfortunate the family cannot be here, and indeed from my point of view, it is unfortunate Ms Kent cannot be here, but these remarks will be provided to the prosecution and indeed to Ms Kent, through Ms Lloyd and her instructors in due course. Yes thank you all for your assistance.
13. OFFENDER: Thank you, Your Honour.
14. MS ELLIS: Thank you, Your Honour.
15. MS LLOYD: As Your Honour pleases.