DPP v Nakoul [2025] VCC 1000

1. The circumstances in which you drove on that day were fully ventilated at trial. In determining those circumstances, I have had regard to the relevant evidence and to the jury's verdict.
2. Your offending can be summarised as follows.
3. At approximately 4:45pm on Saturday 5 November 2022, you approached the Northern Highway while driving your late-model Ford Ranger utility vehicle in an easterly direction along Axedale-Toolleen Road, in Toolleen.[4] You drove into the intersection with that highway against a give way sign and collided with a gold‑coloured Nissan X-Trail vehicle travelling north along that highway. The force of the impact was considerable and caused both vehicles to spin and come to a rest on the north-east side of the intersection.[5]
4. As a result of the collision, the front seat passenger of the Nissan vehicle, Justine Cabral, sustained life-threatening injuries from which she died in hospital five days later. The driver of that vehicle, Mr Segovia, was lucky to sustain only minor injuries. At the time, they were in a relationship and living together in Echuca.
5. Mr Segovia was the holder of a full and current driver's licence.
6. You sustained non-life-threatening injuries, Mr Nakoul, while your friend and only passenger, Ibrahim Barikhan, received minor injuries.
7. Axedale-Toolleen Road runs in a general east-west direction. It was a single undivided two-way bitumen road in good condition. On an easterly approach to the intersection with the Northern Highway, the speed limit was 100km/h until approximately 400 metres before the intersection when it changed to a signed 60km/h speed zone. From that point, a driver travelling in that direction along Axedale-Toolleen Road is presented with multiple sets of rumble strips and various signs before they arrive at the intersection. I will specifically describe those features and their relative locations vis-à-vis each other shortly.
8. Axedale-Toolleen Road was bordered by a gravel shoulder, grass and rural properties. Both sides of the road were lined with large trees which made it difficult to observe traffic along the Northern Highway in both directions. On the eastern side of the highway, Axedale-Toolleen Road changes to Cornella-Toolleen Road.
9. The Northern Highway is the through road at the intersection and runs in a general north-south direction. It was a single carriageway with one lane of travel in either direction separated by a double solid white line and bordered by fog lines in each direction which led to gravel verges and paddocks.[6] The posted speed limit was 100km/h.
10. The Toolleen Hotel is situated on the south-east side of the intersection and was planning to host a wedding on that day in an adjoining building.
11. You lived in New South Wales but had travelled with a group of friends to Albury on 4 November 2022 with the intention of attending a drag racing event being held at the Heathcote Park Raceway the following day. After staying overnight in Albury, you and your friends drove to the raceway in two vehicles. You and Ibrahim Barikhan travelled in your vehicle while Ibrahim's brother George and his son Elias travelled in another vehicle. When your group left the drag racing event at approximately 4:30pm, you were driving your vehicle with Ibrahim in the front passenger seat while George and Elias were following in a separate vehicle.
12. Mr Segovia and Ms Cabral had earlier attended an appointment at Mickleham and then lunched at a shopping centre in Sunshine North. Later that afternoon, they were travelling home towards Echuca with Mr Segovia driving and Ms Cabral seated in the front passenger seat.
13. At approximately 4:45pm, you were driving east along Axedale-Toolleen Road on approach to the Northern Highway and intending to travel across and through the intersection. There is no dispute that as you approached the intersection, you encountered and became aware of the following features, which appeared sequentially as follows:
    • The first pair of 60km/h speed signs;[7]
    • The first set of rumble strips;[8]
    • The second pair of 60km/h speed signs;[9]
    • The second set of rumble strips;[10]
    • A large red and white 'Reduce Speed' sign;[11]
    • The third set of rumble strips;[12]
    • A pair of signs warning of the presence of a Give Way sign ahead;[13]
    • A large sign advising of the crossroad 'B75 Northern Highway';[14] and then at the actual intersection itself;
    • A raised central concrete traffic island on which there was a 'Keep Left' sign,[15] and a pair of Give Way signs.[16]
14. All of those signs were visible with no obstruction.
15. The road was dry, the weather was fine and the visibility was good, if not excellent.[17]
16. After driving over those sets of rumble strips and past those signs, you veered left as directed by the 'Keep Left' sign and entered the intersection without stopping and without giving way to the other vehicle in which Mr Segovia and Ms Cabral were travelling along the Northern Highway in their designated lane and within the applicable speed limit. Mr Segovia saw your vehicle approaching the intersection but he assumed, understandably, that you were going to give way as you were required to do. He had absolutely no opportunity to avoid the collision as you drove your vehicle directly into his path. His vehicle therefore impacted the front drivers' side wheel arch and driver's door of your vehicle at considerable speed and with considerable force, causing it to rotate towards Cornella-Toolleen Road, where it then impacted a street sign before ultimately coming to a rest on its wheels on the north-east corner of the intersection.[18]
17. You remained at the scene, rendered assistance and waited for the police and paramedics to arrive.
18. After the collision a number of people nearby, including staff from the hotel, ran to the Nissan vehicle and assisted with alerting emergency services, conducting first aid and extinguishing a fire which had started in that vehicle.
19. Investigators from the Major Collision Investigation Unit duly attended and examined, photographed, videoed, and measured the collision scene.
20. After analysing the relevant information obtained from the airbag control module of your vehicle and other data, the collision reconstructionist, Detective Sergeant Robert Hay, reached the following conclusions. Your vehicle was travelling at 56km/h as it approached the intersection. You, as the driver of that vehicle, commenced to brake between 0.6 and 0.4 seconds prior to impact. At the point of impact, which occurred within the intersection in the northbound lanes of the highway, your vehicle was travelling at approximately 40 to 42km/h. Your vehicle had not stopped at the give way sign before entering the intersection.
21. Based on all of the information available, Detective Sergeant Hay found no evidence to suggest that Mr Segovia was travelling at an excessive speed.
22. A later examination of your vehicle did not reveal any faults, failures or conditions that could have caused or contributed to the collision. This is unsurprising given what you later told police to the effect that it was a brand new company vehicle which had been serviced on time and was 'running perfectly'.
23. At the trial, the prosecution case was that you had driven dangerously by failing to keep a proper lookout and by failing to give way. In this context, they relied on the speed at which you drove as part of the relevant circumstances and as explaining in part, how you had come to fail to keep a proper lookout, not see the other vehicle, and fail to give way to that priority vehicle as required.
24. Your counsel urged the jury to find that while you were at fault and had caused the collision by not allowing yourself sufficient time to make the necessary observations of traffic on the highway, your driving was careless rather than dangerous. In this context, he submitted that the intersection was an inherently dangerous one and that this was one of the relevant circumstances for the jury to consider when assessing the manner of your driving and whether it reached the necessary threshold of being dangerous.
25. In this regard, I note that the jury not only had the benefit of the focused arguments made during each party's closing address, but also the significant advantage of an earlier view conducted at the scene. The jury had also been relevantly directed as to the law relating to dangerous driving.
26. Ultimately, they were of the unanimous view that the manner in which you drove on the afternoon of 5 November 2022 was dangerous to the public having regard to all the circumstances and that it was your dangerous driving that caused the death of Justine Cabral.
27. As such, I am bound to sentence you on the basis that the jury were satisfied that the manner in which you drove by failing to keep a proper lookout and by failing to give way involved a serious breach of the proper management or control of your vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.

1. I note that you were spoken to by police at the scene and cooperated with their investigation, to the extent that you were able. You admitted to being the driver of one of the vehicles involved in the collision and provided your name and address. You also took part in a preliminary breath test at the scene and later provided a blood sample for analysis. The results were negative for alcohol and drugs.
2. A forensic analysis of your mobile phone records was consistent with you not having used that phone at the time of the collision.
3. When you were formally interviewed the day after the collision, you told police that you had been the driver of the Ford Ranger Raptor vehicle involved in the collision and described your memory of the immediate lead-up to the collision in the following terms. You had been driving east along Axedale-Toolleen Road intending to proceed straight ahead across the intersection. You slowed down after seeing a give way sign and then looked to your right and left but did not see any car. Then, as you got to the give way sign, past it, there was a car which you did not see because it was camouflaged, which you explained first by reference to the sun and then later by reference to it being the same colour as the road. You could not recall there being any other warning signs leading up to the intersection or what speed you were travelling. You believed that vegetation may have obstructed your view.
4. I note that in his evidence, your front seat passenger Ibrahim Barikhan said that you had slowed down and looked to your left and right before proceeding into the intersection. He described the ensuing collision as unexpected and a surprise.
5. During the interview, you also told police that you had no previous familiarity with this area and that it was the first time that you had ever driven on this road and been to this intersection. I do not accept this last statement as correct.
6. On this question, I accept the evidence given by your friend, George Barikhan. He was the driver of the other vehicle which was being used to transport your group. In evidence-in-chief, he was in effect asked whether he had driven on the same road when travelling to the Heathcote drag races as he had driven on when returning up to the point of the collision, to which he replied 'Yes, I believe so'.
7. That witness struck me as honest and reliable. I also note that he was not challenged with regard to that piece of evidence in cross-examination. In fact, he was not cross-examined at all. Furthermore, although the passenger in your vehicle was cross-examined by your counsel, it was never put to him that the group had travelled by different routes when travelling to and from the races on that day.
8. The evidence given by George Barikhan on this issue would, in any event, appear logical given that your group was returning to Albury that afternoon, the same location from which they had set off that morning for the sole purpose of attending the Heathcote drag races.
9. It is clear, therefore, that you had some familiarity with the relevant intersection on this day since you had, only hours earlier, driven west along the Cornella-Toolleen Road, past the Toolleen Hotel and stopped at the intersection with the Northern Highway as required by the applicable stop sign. Then, no doubt, you would have driven across the intersection and headed in a westerly direction along the Axedale-Toolleen Road on your journey to Heathcote.

1. Following the interview, you were charged and released on bail, which has remained the case to this point. There is thus no period of pre-sentence detention that can be declared in your case, Mr Nakoul.

1. This court must have regard to the impact that your offending has had on any victim. The relevant statutory definition of victim is a relatively broad one and sufficient to encompass not just Justine's family members but also any member of the public who witnessed the collision or assisted at the no doubt traumatic scene immediately afterwards. Clearly, there were multiple victims of your offending, Mr Nakoul.
2. Of course, it should not be overlooked that the principal victim of your offending was Justine herself. She was only 24 years of age when her life was so tragically taken away. As is clear from what her boyfriend, mother and sister have said in their respective victim impact statements, Justine had her whole life ahead of her and was looking forward to getting married, having children and travelling. Your offending has forever prevented her from realising those dreams.
3. Her then boyfriend, Mr Segovia, has been deeply impacted by her death. His victim impact statement was made on 8 April 2025 and illustrates the significantly adverse effect that your offending has had on him over the more than two-year intervening period.[19] He feels like a part of his life has been taken away and that he will never be the same. Since the collision, he has only been able to work part‑time. He was unable to drive a vehicle for two years. He experiences ongoing dreams and nightmares and has trouble sleeping. He commenced counselling but had to abandon it because of the trauma he experienced when having to explain and therefore relive the circumstances of the collision. Sadly, he has felt a degree of personal responsibility for what occurred and this has caused him to withdraw and become socially isolated. It is to be hoped that with further time Mr Segovia will come to realise that he was in no way to blame for what happened to Justine. It was your driving that caused Justine's death not his.
4. The victim impact statements made by Justine's mother, Agnes Olivar, and sister, Julie Rivera, were also made on 8 April 2025.[20] They are a testament to the devastating impact that Justine's avoidable and untimely death has had on them.[21]
5. Her mother describes the agony and extreme pain that she has felt as a result of losing her only daughter in such an unexpected and inconceivable manner. She has been left feeling alone and cries often. She has just wanted the case to be over but also for justice to be done for Justine.
6. Ms Rivera refers to Justine as her 'only sister'[22] and as her daughter's 'only aunt'. She describes Justine's avoidable death as 'devastating'. It has left a permanent void in their lives. The trauma has left her feeling sorrow, anger and disbelief, and she cries often. In addition, she now feels anxious while driving.
7. Finally, I should not leave this topic of victim impact without referring to and commending those members of the public who were in the vicinity of this collision and went to help. I have no doubt that the eyewitness, Ms Bryan, and the other locals who attempted to assist in the immediate aftermath of this high-speed collision would have been emotionally impacted by what they saw and experienced. It is appropriate, therefore, that they also be recognised as victims in their own right.

1. I note that you have a very limited and somewhat aged prior criminal history, Mr Nakoul.
2. As the criminal record filed with this court shows,[23] your only previous court appearance was at Downing Centre Local Court on 28 October 2009, at which time you were placed on a bond without conviction for an offence of make false or misleading statement and fined for an offence of importing a prohibited import, which I understand related to a taser and a knuckle duster.
3. Those two Commonwealth offences prevent you being treated as a 'first-time' offender for this offence but otherwise have very little if any relevance to my sentencing task.

1. I now turn to consider your personal circumstances, Mr Nakoul.
2. You are now aged 42. You married in 2015 and have four young children in whose lives you are closely involved.
3. You are the youngest of six children and were born in Lebanon, where your family lived in a remote regional area. Although that location had the advantage of being distant from the day-to-day trauma of the ongoing civil war, there were occasions when you were exposed to it and it is therefore unsurprising that you developed symptoms of anxiety.[24]
4. You and your family moved to Australia in 1996, where you settled well. You have a good relationship with your parents and all of your siblings.
5. While still at school, you engaged in roof tiling work.
6. Then, after finishing Year 10, you completed a carpentry apprenticeship. You became a qualified builder after completing the required Certificates in Building. You have been self-employed for more than 20 years and run your own construction company. Although you employ a number of other tradesman, you continue to perform a 'hands on' role.
7. Your business was adversely impacted by the COVID-19 pandemic and has still not fully recovered. Faced with such stress, you struggled with symptoms of anxiety.
8. Since being involved in this collision, your anxiety has worsened and you have experienced a constant decline in mood which has negatively impacted your capacity for work.
9. You commenced to see a psychologist, Chafic Awit, on 5 April 2023. After three sessions, you stopped attending as you did not feel ready to 'keep opening up'. You then recommenced seeing him on 13 March 2025. As at 18 May 2025, the date of his report, you had attended a total of seven sessions. As that report reveals, you were considered to have a generalised anxiety disorder at the time of this collision but have since gone on to develop a major depressive disorder.
10. In the opinion of that psychologist, your insight and judgement remain intact and your risk of reoffending is extremely low. Regardless, a further period of psychological intervention of at least 12 months is recommended.
11. Although you have resorted to alcohol and playing the pokies on occasion to try and cope with the emotional impacts of your current situation, it has not reached a problematic level. You remain a moderate social drinker and do not use drugs.
12. As has been clear from the numerous people who have attended your plea and sentence hearings, and from the many written testimonials that have been tendered, you enjoy very strong support from your family, friends and local community, particularly your local Lebanese community.
13. The references attest to your many good traits. You are dedicated to your family, community and faith. You work hard and are a good provider for your family. You have been very involved in supporting and donating to a number of charities which help the disadvantaged and vulnerable in the community. You are a person who is highly regarded and who is considered to act responsibly and with integrity and compassion. A number of your referees note that you have shown remorse for this offending, which they consider to be out of character.
14. As is clear from the financial material that was provided on the plea, your incarceration would result in a significant and negative impact on your business, which would in turn impact on your family. Your employees and current clients would suffer. You would be forced to sell the family's two investment properties, rather than continue to enjoy the capital growth that retaining them would achieve. In that event, the proceeds of those sales would be used to pay off the mortgage on the family home. The remaining money, estimated to be about $815,000 at most, would be available to your wife and children to live off while you remained in custody.

1. Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Nakoul, including the following.
2. You cooperated with the initial police investigation, to the extent that you were able. For example, you participated in a PBT, provided a blood sample for testing, and answered police questions at the scene and when interviewed the next day.
3. I accept that you regret the tragic consequences of your driving. So much is clear from your conduct at the scene, from the observations made by your treating psychologist and referees, and from the focused manner in which your trial was conducted.
4. That said, you have not admitted your legal responsibility for what occurred and you are not entitled to the type of sentencing discount that someone who commits this type of offence and does those things is entitled to. Such a sentencing discount is usually significant given the utilitarian benefits that flow from such a plea, particularly an early plea which has spared any eyewitnesses (including any surviving driver and/or passenger of any other vehicle involved in the collision) from having to relive their traumatic experience by giving evidence. The course you took did not save the community from the cost and time of a trial and it did not relieve Mr Segovia from having to give evidence, nor the eyewitness, Ms Bryan.
5. So you are not entitled to any such discount in your sentence. But in saying that, let me make clear that you are not to be and nor will you be punished for choosing to exercise your legal right to plead not guilty and run a trial.
6. You come before this court as a man in his early 40s who has no relevant driving history.
7. You are a well-respected and admired person by those who know you well.
8. You enjoy very strong support from your family, friends, church and local community.
9. Over a number of years, you have shown an admirable commitment to helping others in need through involvement in a number of charities.
10. You have a good work ethic and an excellent work history.
11. You have done well despite experiencing a difficult and somewhat traumatic childhood while living in Lebanon.
12. Your incarceration will negatively impact your business and your family's financial situation and this will itself be a form of punishment.
13. The service of any sentence of imprisonment will likely be, for you, a difficult experience. As someone who has never been in custody before, you will commence your sentence ignorant as to the harsh realities of the prison system. It will be a challenging environment for you to navigate. Your diagnosed major depressive disorder will make the service of any term of imprisonment more difficult for you than for a prisoner of sound mental health. You will likely also have less personal family contact than many other prisoners while you are held here in Victoria, as your family lives interstate. And, I have no doubt that you will worry about how your wife and children are coping while you remain in custody.[25]

1. I now turn to deal with the gravity of your offending, Mr Nakoul.
2. Self-evidently, this type of offence is inherently serious. Every such offence involves the tragic and unnecessary loss of a human life and, by fixing the high maximum penalty that it has, Parliament no doubt intended to recognise the sanctity of human life. Parliament has further emphasised the seriousness of this type of offence by including it in the list of Category 2 offences in the Sentencing Act 1991 ('the Act'). Consequently, any offender sentenced for such an offence must be sentenced to a term of imprisonment other than one in combination with a community correction order unless the court is satisfied that one or more of the limited statutory exceptions apply.
3. Although intrinsically serious, this type of offence is one that can be committed in a wide array of circumstances. At one end of the spectrum are cases that fall just short of culpable driving (in which criminal negligence is required) and at the other end are cases closer to the summary offence of careless driving. And, in between, are cases involving varying degrees of dangerousness and levels of moral culpability.
4. On my assessment, this case falls in the mid-range on the spectrum of seriousness for this type of offence. I consider your level of moral culpability for that offending to be neither low nor high but as being closer to the latter than the former.
5. Whilst some consideration needs to be given to the presence or absence of any aggravating factors of this offending, an undue focus on the latter risks distracting the sentencer from properly considering the actual circumstances and hence, the level of seriousness of the case at hand. Thus, any attempt by counsel to highlight aggravating factors that can arise in this type of offence but which were not present in this case is an exercise of very limited utility.
6. What is called for in every case is individualised justice. The court must arrive at a just sentence after having regard to the actual circumstances of the offence committed and to the personal circumstances of the offender before it. With that in mind, I note the following features of this offending.
7. The evidence demonstrates that you were driving on an afternoon when the weather was fine, the road was dry and the visibility was good if not excellent.
8. You had some familiarity with this area as you had previously crossed this intersection and driven along Axedale-Toolleen Road only hours earlier, albeit from the opposite direction.
9. As you travelled east along Axedale-Toolleen Road and approached the intersection with the Northern Highway, you were put on clear notice of the need to drive with care and according to the surrounding road conditions. First, was the sign alerting you to the significant reduction in the speed limit from 100km/h to 60km/h. Next, was a set of rumble strips designed to provide a driver with both a visual and tactile warning of the need for care. Then, a further sign confirming the reduced speed limit followed by a second set of rumble strips. Then, after having already been advised of the reduced speed limit, you were advised by means of a large red and white sign of the need to drive at a reduced speed. After that, you were faced with a third set of rumble strips followed by a pair of predominantly yellow and red signs warning of the fact that there was a Give Way sign ahead. And finally, before you actually reached the intersection itself, you would have been in a position to see from the signage just before and at that intersection that there was an approaching cross-intersection with a highway at which you were required to give way to any priority traffic.
10. As you explained when interviewed, your intention when approaching that intersection on that afternoon was to travel across it and then continue driving straight ahead towards Albury. That meant that you were required to give way to vehicles travelling in each direction along the highway, not just to those travelling from your right heading north.
11. Another relevant circumstance was the presence of the many large trees located on either side of the road on which you were travelling. As shown by the evidence led at trial, including what could be seen on the view, these trees restricted or obscured to some extent, the view of parts of the Northern Highway to the left and the right of Axedale-Toolleen Road on an easterly approach to the intersection. This was yet another reason for a driver exercising appropriate care on the approach in order to ensure that they were able to make the necessary observations along the highway in both directions so as to be in a position, if required, to give way to any vehicles travelling on that priority road.
12. In the abovementioned circumstances, it comes as no surprise that the jury returned the verdict that they did.
13. As your counsel in effect submitted, the fact that you were travelling at the speed that you were, 56km/h as you approached the intersection and at just over 40km/h at the point of collision following some braking, meant that you had allowed yourself insufficient time to keep a proper lookout for any vehicle travelling on the highway from your right and to give way if required.
14. At trial, your counsel placed reliance on the fact that you had reduced your speed once required to do so by the change in speed limit, and that on the approach to the intersection you were not speeding. Be that as it is, a speed limit is not a target or suggested speed and a driver has the overarching obligation to drive according to the conditions.
15. In your case, you had ample warning of the need to be careful, including by way of the various road signs, the rumble strips, and the visual impediment created by the trees. Based on the route you had driven earlier that day and the large sign advising of the nature of the intersecting road, namely a highway, you either knew or ought to have known that you were approaching a major intersection through which the priority traffic was permitted to drive at a significant speed.
16. As I have said, you could not have but appreciated that there was an obligation on your part to take care and to drive in a manner that would enable you to fulfil your lawful responsibilities as a road user.
17. In my view, for the reasons which I have endeavoured to explain, I consider this offence to be a relatively serious example of its type and as falling in the mid-range on the spectrum of seriousness for offences of dangerous driving causing death. I certainly do not agree with your counsel's submission to the effect that this was a clear example of low range offending, but equally I do not agree with the prosecution's categorisation of it being above mid-range.
18. Of course this is a less serious example than some other cases, such as those which may involve the taking of deliberate and significant risks, or driving at very high speed, or driving whilst significantly affected by alcohol and/or drugs, or a combination of those or other factors. But when due regard is had to the factors that are present in this case, there can be no doubt that this offending was serious.
19. Your counsel sought to rely on what he described as the inherent dangerousness of this intersection and its surrounds. In doing so, he referred to the fact that one of the hotel employees considered it to be dangerous and to the later actions that the applicable road authorities had taken by reducing the speed limit from 100 to 80km/h on the Northern Highway approach to the intersection,[26] and by the installation of a pole with an amber flashing light on the Axedale-Toolleen Road approach to that intersection.[27] He also referred to the obscuring effect that the trees had to a driver's view of the Northern Highway.
20. I do not accept that this was such an inherently dangerous intersection, and so, I do not intend to view your offending as less objectively serious or to treat your moral culpability as reduced.
21. Just because an area of roadway is made safer does not ipso facto mean that it was inherently dangerous beforehand. As I have been at pains to make clear already, there were multiple indicators on the easterly approach to this intersection of the need for a motorist to be careful and of the need to give way if required. The very fact that trees obscured a motorists view of the highway to some extent was itself a warning of the need to take care. It was your failure to pay sufficient regard to the warnings that resulted in you failing to keep a proper lookout and failing to give way when required.
22. Driving on our roads is an activity that inevitably involves some risk and a corresponding obligation to drive responsibly. A motorist must therefore drive according to the prevailing conditions and circumstances. There was nothing about this intersection and its surrounds that could be seen to be a contributing causal factor in this collision. In this context, it was interesting to note that at one stage during the plea, your own counsel suggested that 99.9 per cent of drivers would successfully navigate this intersection. The circumstances of this case are far removed from those that were present in Pan's case_._[28] In that case, there was a clear evidentiary basis for the court to find that the intersection was inherently dangerous and that its very poor road design had played a part, along with the offender's inattention, in causing the collision. In such circumstances, there was a proper basis for treating the offender's moral culpability as reduced. That is not the situation in this case.
23. Before leaving this topic, I should note that, as required by the law, I have had regard to the impact that this offending has had on those directly affected by it. Clearly, it has been profound and long lasting, as eloquently explained by those close to Justine in their respective victim impact statements.

1. When a court is called upon to sentence an offender for a qualifying Category 2 offence under the Act, it must impose a sentence of imprisonment other than one combined with a community correction order unless satisfied that one or more of the limited statutory exceptions are established.
2. In this case, the defence submitted that the court should be satisfied that the exception in s 5(2H)(e) of the Act has been established.

The s 5(2H)(e) exception

1. In order for this exception to be made out, the court must be satisfied that there are substantial and compelling reasons that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is, a term of imprisonment other than one in combination with a community correction order).
2. This court must therefore consider the circumstances relied on and make an evaluative judgement as to the significance of those circumstances. However, a number of related provisions must also be considered and render the judicial task more complicated.
3. In the recent decision of DPP v Lombardo,[29] the Court of Appeal helpfully analysed the relevant provisions in detail and explained the correct approach to applying the test under s 5(2H)(e).[30] It provides a useful framework in which to undertake the necessary analysis and is, essentially, in the following terms.
4. The enquiry under s 5(2H)(e) has two key steps.
5. First, the court must identify whether there are 'substantial and compelling circumstances'. The circumstances must be weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. So, that is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
6. The second critical step, if the circumstances are substantial and compelling, involves an analysis as to whether those circumstances are also 'exceptional and rare'. This is a composite phrase which imposes a single test. The two words operate together and each influences the meaning of the overall phrase. The circumstances must be wholly outside the ordinary factors typical of the relevant offence, which in this case is dangerous driving causing death.
7. Applying the two steps of the mandated analysis calls for the sentencing judge to make an 'evaluative judgement' once the underlying facts have been established and unaffected by notions of burden of proof.
8. It is possible for a set of circumstances to engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, 'relatively common'.
9. In making the assessment as to substantial and compelling circumstances, the Act imposes a number of further conditions.
10. First, the judge must regard general deterrence and denunciation of the offender's conduct as more important than other sentencing purposes in s 5(1) of the Act.[31]
11. Next, the judge must give less weight to the offender's personal circumstances than to the nature and gravity of the offence.[32]
12. Thirdly, the judge must not have regard to the matters in s 5(2HC)(c), which include the offender's previous good character (other than an absence of previous convictions or findings of guilt), or an early guilty plea or prospects of rehabilitation or parity with other sentences.
13. Fourthly, the judge must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence only an order for a custodial sentence 'should ordinarily be made'.[33]
14. Finally, the judge must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence.[34] Whilst this provision simply restates the task under s 5(2H)(e) itself, it confirms that it is the cumulative effect of the relevant circumstances which is significant.
15. In the later case of DPP v Kenneison,[35] a differently constituted Court of Appeal Bench approved the analysis and approach to the s 5(2H)(e) exception taken by the court in Lombardo and then went on to state:

Acknowledging both that s 5(2H)(e) establishes 'a very high hurdle that will not often be surmounted', a 'requirement [that] is - no doubt deliberately - almost impossible to satisfy' and that such observations 'must not be treated as a substitute for the statutory language', it is plain that the words 'substantial and compelling circumstances that are exceptional and rare' have real work to do. The circumstances must be both sufficiently weighty and powerful to justify not imposing a custodial sentence and 'wholly outside the ordinary factors typical of the relevant offence'.[36]

1. I have followed the abovementioned approach when considering the sub-s(2H)(e) exception in this case.
2. Your counsel relied on the following five factors in combination to persuade the court to invoke this exception, Mr Nakoul.
3. First, the fact that you have shown remorse.
4. I accept that you are remorseful notwithstanding the fact that you pleaded not guilty. In running your trial, you admitted to having been involved in and causing the collision and confined the ambit of the jury's task to a consideration of whether the prosecution could prove to the criminal standard that your driving was dangerous as opposed to careless. The matters contained in your letter to this court[37] as well as the observations made by the psychologist[38] and a number of your referees provide further support for the court taking this view.
5. Second, the nature and gravity of the offending.
6. In essence, your counsel submitted that this example of dangerous driving causing death should be viewed as falling well and truly at the low end for such offences and that your moral culpability for it should be viewed as extremely low. In so submitting, he pointed out that in the lead-up to this collision you were not breaking the law or deliberately driving in a dangerous manner but rather that you made a terrible mistake by failing to interpret what this piece of roadway required. In that context, he conceded that if you had paid proper attention to the surrounding circumstances over what he described as that 10-second or so journey, you would have known that you were driving too fast. He also sought to rely on what he categorised as the inherent dangerousness of this intersection.
7. Without repeating my reasons for so finding, I do not accept that this was low level offending involving an even lower level of moral culpability. Nor do I accept that there is an appropriate evidentiary basis for finding that this was an inherently dangerous intersection, let alone one that contributed causally to the collision.
8. Third, your personal circumstances.
9. You experienced a difficult upbring in an isolated regional area of Lebanon, during which you were exposed to traumatic aspects of the ongoing civil war. After travelling to Australia with your family, you married and now have four children whose ages range between 11 and one. You and your wife are the sole carers for your elderly parents. You have worked hard and been a good provider for your family. You are a successful businessman, running a profitable construction business that provides employment to a number of other people. You are well thought of and well supported in the community, particularly in your local Lebanese Christian community.
10. Fourth, the consequences of imprisonment.
11. Whilst not going so far as to suggest that it was 'exceptional', your counsel submitted that in the event that you were imprisoned, the consequences which would be occasioned by that incarceration would be very significant and harsh. Your business and its clients and employees would be adversely impacted. You and your wife would be forced to sell two investment properties that you would not have otherwise sold at this time, with a consequent lost opportunity to increase the value of your asset base. I was informed that the equity from the sales of those two properties would enable you and your wife to pay out the existing mortgage on the family home and leave approximately $815,000 for your wife and children to live on while you were in gaol. And, you suffer from a major depressive condition.
12. Fifth, general deterrence and denunciation.
13. Your counsel submitted that this court ought moderate the weight to be given to the sentencing principle of general deterrence in this case because it has limited relevance to strict liability offences, of which the offence of dangerous driving causing death is one. As he put it, the circumstances of your case involved an unintended consequence.
14. He also submitted that the greater importance that the statutory provision requires the court to give general deterrence and denunciation as compared to other sentencing purposes does not mean that imprisonment is required.
15. When addressing the court on the relevant considerations which were relevant to the separate aspects of the threshold test for the circumstances, namely 'substantial and compelling' and 'exceptional and rare', counsel made it clear that it was the combined effect of all of the circumstances relied on as opposed to any individual one that ought satisfy this court that the threshold in s 5(2H)(e) had been established, including the requirement that a departure from the ordinary requirement to impose a term of imprisonment other than one in combination with a community correction order was justified.
16. For their part, the prosecution submitted that the applicable threshold was a very high one and so difficult to establish. It was put on behalf of the Director that there was nothing in the circumstances of this case that could provide a basis, even when viewed in combination, for the court finding that the relevant test had been satisfied. Accordingly, the court was required to impose a sentence other than one in combination with a community correction order.
17. As will be clear from what I have already said, I do not accept some of the circumstances on which defence counsel rely. For example, his categorisation of the level of gravity of this offending and your level of moral culpability and his argument to the effect that general deterrence has limited application in the circumstances of this case.
18. With that caveat, I have considered the nature and significance of the circumstances upon which your counsel relies and have given them what weight I can bearing in mind the statutory limitations to which I have referred earlier.
19. I have ultimately concluded that the combination of such circumstances are not weighty or forceful. In my view those circumstances are not 'substantial and compelling' so as to justify not imposing a custodial sentence.
20. Whilst that finding in relation to the first step makes it unnecessary for me to proceed to the second step and analyse whether those same circumstances are 'exceptional and rare', for the sake of completeness and in case I am incorrect in my finding relating to the first step, I will briefly deal with this additional requirement of the s 5(2H)(e) test now.
21. Mindful as I am that the circumstances this part of the analysis permits a wider ambit of factors to be considered, I am nonetheless not satisfied that the circumstances of this case are exceptional and rare within the context of cases involving dangerous driving causing death.
22. In many such cases, the offender will be someone who has family and community support, little or no criminal history, and who is remorseful and psychologically impacted by having driven dangerously and caused the death of another person. Sadly, it is also not uncommon that the service of a term of imprisonment by that person will have adverse emotional and financial consequences for them and their family. Sometimes, as is the case here, others will also be adversely impacted, including employees of a business run by the offender.
23. The combined circumstances relied on by your counsel cannot, in my view, be considered as wholly outside the ordinary factors typical of offences of this type. I am therefore not satisfied that those circumstances are exceptional and rare.
24. Accordingly, I am not satisfied that the very high hurdle or threshold for this court engaging the s 5(2H)(e) exception has been established.

1. I will now turn to consider the relevant sentencing principles.
2. For offending of this type, general deterrence and denunciation loom large as sentencing considerations and must be given emphasis.
3. The community is rightly concerned about the tragic and avoidable loss of life resulting from motor vehicle collisions like the present. Such driving conduct must be condemned and suitably discouraged in order to try and address the problem on our roads.
4. A clear message must be sent on behalf of the community that this type of criminal conduct is totally unacceptable. And, by the imposition of appropriately stern sentences and the very real prospect of imprisonment, the courts must seek to deter other drivers in the community who are minded to abandon their obligations to other road users by driving dangerously.
5. Specific deterrence and protection of the community whilst not irrelevant, do not have anywhere near the same significance that general deterrence and denunciation do. In so concluding, I have taken into account that you have no criminal history for driving offences, you are remorseful, and a degree of personal deterrence has likely already been achieved in your case due to the tragic consequences of your criminal conduct and the salutary experience of being prosecuted and sentenced for it.
6. Your age and prospects of rehabilitation are important considerations. You have reached your early 40s with very little by way of any offending history, limited as it is to this offence and the two offences for which you were sentenced in 2009. You enjoy very strong family and community support and you have a good work ethic and an excellent work history. Doing the best that I can on the available material, I have concluded that your prospects are very good.
7. This court is required to punish you in a manner and to an extent that is just in all the circumstances. Notwithstanding the favourable matters that can rightly be said on your behalf, the nature and seriousness of this offending warrant a significant punishment.

1. Your counsel's primary submission on sentencing was that this court should be satisfied that the s 5(2H)(e) exception was established and that it was appropriate in this case for you to be placed on a community correction order. His alternative submission was that the court should impose a term of imprisonment with a low non-parole period together with a substantial fine.
2. For their part, the prosecution submitted that this was serious offending for which nothing other than a term of imprisonment with a non-parole period was appropriate.

1. This is a sad case as so many cases involving death occasioned by dangerous driving are. A young woman with her whole life ahead of her was killed in an avoidable collision and her loved ones have been left to grieve her loss and endure the ongoing pain that her loss has caused. And, an otherwise law-abiding and hard-working family man who caused that death through an uncharacteristic instance of dangerous driving now faces the unpalatable prospect of going to gaol, with all of the pain that such a sentence will occasion him and those close to him.
2. The court's obligation in this case is clear but nonetheless difficult.
3. The appellate court decisions relating to serious driving cases and Parliament's recent interventions in the area of Category 2 offences leave little room for leniency and no room for imposing a non-custodial sentence given the circumstances of this case.
4. Accordingly, and given the nature and seriousness of this offence, I have concluded that nothing other than a term of imprisonment with a non-parole period is open and appropriate in this case.
5. That said, I have also concluded that it would be appropriate to attach additional weight to your personal circumstances and the matters in mitigation upon which you can rely when determining the appropriate non-parole period. In order to encourage and facilitate your already good prospects and in order to give effect to the sentencing principle of parsimony, I will fix a relatively low non-parole period compared to the head sentence. However, there are limits and such a period should not be set so low as to effectively undermine some of the very sentencing principles that need emphasising or at a level that would be tantamount to an unjust punishment for this offending.

1. Mr Nakoul, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
2. On Charge 1, dangerous driving causing death, you are convicted and sentenced to a term of three years and nine months' imprisonment.
3. In respect of that sentence, I fix a non-parole period of two years.

1. For the sake of completeness and clarity, I indicate that in respect of that sentence, there is no applicable period of pre-sentence detention.

1. In respect of any conviction imposed for a serious motor vehicle offence (of which this type of offence is one), a sentencing court must cancel any driver's licences or permits held by the offender and disqualify that person from obtaining any other licence or permit for whatever period the court considers appropriate[39] but must not specify a period of disqualification that is less than 18 months.[40]
2. Notwithstanding the seriousness of this offence, any licensing order that exceeded the mandatory minimum period of 18 months would, in my view, be unduly punitive. In essence, that is because for a significant period after being charged and released on bail on 6 November 2022, one of Mr Nakoul's bail conditions prohibited him from driving a motor vehicle.[41]
3. Accordingly, in respect to this charge of dangerous driving causing death, I order that any driver's licences or permits held by Mr Nakoul are hereby cancelled and he is disqualified from obtaining any other licence or permit for the minimum period of 18 months, effective from today's date.

1. Are there any matters that either counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Rattray?
2. MR RATTRAY: No, Your Honour.
3. HIS HONOUR: Thank you. Ms Dearman?
4. MS DEARMAN: No, Your Honour.
5. HIS HONOUR: Thank you. Mr Rattray, I take it that you will be speaking to your client shortly, whether by visiting him in the police cells or by other means for the purposes of providing him with appropriate legal advice?
6. MR RATTRAY: Correct. Yes, Your Honour.
7. HIS HONOUR: Are there any custody management issues that you suggest should be included in the relevant custody management documents that will accompany your client into custody, apart from that he may present as a vulnerable prisoner because this is his first time in custody and he has been diagnosed as suffering from a major depressive disorder?
8. MR RATTRAY: No other.
9. HIS HONOUR: All right, they'll be duly noted, Mr Rattray.
10. In that event, the custodial officers can now take Mr Nakoul into custody and he may now be removed from the court, thank you.
11. Please now adjourn the court, Mr Tipstaff.

[1] Charge 1 on Indictment N12402385, laid pursuant to s 319(1) of the Crimes Act 1958 (Vic).

[2] In a tendered admission of fact (Exhibit G at the trial), Mr Nakoul admitted he was the driver of the Ford Ranger utility involved in the collision with the Nissan vehicle being driven by Mr Segovia and that Justine Cabral had died from the injuries she sustained in that collision.

[3] Mr Nakoul was born in February 1983 and is now aged 42.

[5] The force of the impact can be seen in the CCTV footage taken from a camera outside the Toolleen Hotel (Exhibit C at the trial).

[6] There was also a slip lane which allowed east bound traffic to turn left from Axedale-Toolleen Road and safely merge with any traffic travelling north on the Northern Highway.

[7] Exhibit A at the trial (Photo 1). Located 400 metres from the intersection.

[8] Ibid (Photo 2). Located approximately 325 metres from the intersection.

[10] Ibid (Photos 2 and 3). Located approximately 250 metres from the intersection.

[12] Ibid (Photo 4). Located approximately 200 metres from the intersection.

[16] Ibid (Photos 6, 7 and 8). One of the Give Way signs was centrally located at the rear of the traffic island while the other was at the left-hand side of the road.

[17] The evidence from the witnesses variously described the visibility as 'OK', 'good', 'clear', and 'perfectly clear'.

[18] The force of the collision is evident from the CCTV footage captured by a camera located at the Toolleen Hotel. A recording containing that brief footage was tendered as Exhibit C at the trial.

[20] Exhibits C and D on the plea, respectively.

[21] It is to be noted that in her statement, Ms Rivera also makes reference to the effect of Justine's death on Mrs Olivar.

[22] As was explained at the plea hearing, they share the same father but have different mothers. This also explains why Justine is Mrs Olivar's only daughter.

[24] See report of the psychologist Chafic Awit dated 18 May 2025 (Exhibit 4 on the plea).

[25] See report of Chafic Awit at [18] and [35]. It is to be noted, in this context, that in respect of Mr Nakoul's wife, English is not her first language and to date Mr Nakoul has been more closely involved with their children's schooling needs.

[26] As the witness Ms Edwards indicated when giving evidence, this change had only been put into effect a few days previously. Senior Constable Humphrey gave evidence that the change was affected on 25 March 2025, just two days before the view was conducted. The evidence did not identify what the reason for effecting the change was.

[27] No evidence was given as to when this change was made.

[28] Pan v The Queen [2020] VSCA 42.

[29] [2022] VSCA 204; [2022] 302 A Crim R 329.

[30] Ibid, especially at [64]-[91] (citations omitted).

[31] Section 5(2HC)(a) of the Act.

[32] Ibid s 5(2HC)(b).

[33] Ibid s 5(2I)(a).

[34] Ibid s 5(2I)(b).

[35] [2023] VSCA 321.

[36] Ibid [38] (case references and footnotes omitted).

[38] In a report dated 18 May 2025 (Exhibit 4 on the plea).

[39] Sections 87P(d) and 89(1) of the Act.

[40] Ibid s 89(2)(a).

[41] This court was informed at the plea hearing that the condition prohibiting Mr Nakoul driving was not removed until 3 October 2024.