DPP v Russell [2025] VCC 1788

1. At about 3:15am on Wednesday 21 September 2022, you, Brett Michael Russell, were driving a blue Freightliner prime mover truck towing two heavily loaded A and B trailers east along the Western Freeway as it approached Bacchus Marsh. It was dark, raining lightly and the road surface was damp.
2. As you came to a steep descent in the road, you saw signs indicating that the speed limit had been reduced from 110 to 40kph. The traffic ahead of you slowed and was being diverted into the left lane.
3. Critically, you knew, and had known for some time, that the brakes on your prime mover and on each of its trailers were defective.
4. Unable to effectively slow your vehicle on the descent, you manoeuvred around the slowing traffic but in doing so collided into the rear of a Scania bus with 32 passengers on board. The passengers were school students and teachers from a school in Ballarat.
5. The force of the impact was such that it pushed the bus through a roadside barrier and down a steep 10 meter embankment on the side of the freeway. Your truck finally came to rest about 400 meters further up the road from the point of the collision.
6. As a result of your criminal negligence, 10 of the bus passengers were seriously injured. Most, if not all, of the remaining 21 passengers, together with the driver, sustained significant physical and psychological injuries. They and three road workers were placed in danger of serious injury by your reckless conduct.
7. In consequence you were charged and have pleaded guilty to the following offences:
8. That at Pentland Hills in Victoria on 21 September 2022, by negligently driving, you caused serious injury[1] to the following victims:

Charge 1 - Ashlee[2] - significant trauma to her left foot requiring multiple surgeries, a thin tentorial subdural haematoma, a grade 3 liver laceration, a grade 2 splenic laceration, a T5 body vertebral body compression fracture, 5th to 9th posterior rib fractures at costovertebral joints and a traumatic brain injury with associated and prolonged cognitive impairment.

Charge 2 - Ms Taylor[3] (staff member) - significant scapula fracture with subsequent onset of right frozen shoulder. Pain from the fracture extending down the anterior/medial chest wall, down the medial aspect of her arm including the forearm and fingers together with clinically significant post-traumatic stress disorder (PTSD).

Charge 3 - Bethany[4] - significant psychological injuries including PTSD, associated anxiety, sleep and mood symptoms, fatigue, a displaced heal fracture and soft tissue injuries.

Charge 4 - Mary[5] - spinal fractures and compressions, lacerations requiring surgery and soft tissue injuries. Cervical fractures assessed as serious and substantial with a high probability of ongoing neck and back pain and stiffness.

Charge 5 - Hailey[6] - brain injury, and fractures to spine, ribs, and scapula.

Charge 6 - Megan[7] - spinal compression fractures, soft tissue injuries, and PTSD.

Charge 7 - Nathan[8] (staff member) - soft tissue injuries to the neck, persisting bulging discs in the lumbar spine, reduced cervical range of motion to the neck associated with ongoing extreme headaches and PTSD.

Charge 8 - Kayla[9] - collapsed lung, fractures of the cervical spine, scapula, bruising to the lungs, and partial detachment of her right ear.

Charge 9 - Jesse[10] - fractured ribs, a collapsed lung, spinal injuries and concussion. Persistent left thoracic and cervical pain, left shoulder pain, weakness, headaches, fatigue, poor concentration and post-concussion syndrome.

Charge 10 - Ms Martin[11] (staff member) - spinal fractures, soft tissue injuries. Sustained 20% whole person impairment resulting from fractures to the lumbosacral spine, thoracolumbar spine, cervicothoracic spine and ribs, with the degree of impairment being permanent.

1. Charge 11 - rolled up charge: That at Pentland Hills in Victoria on 21 September 2022, you recklessly engaged in conduct, namely the driving of a B-double truck knowing that the brakes of the said truck and the trailers attached to it were defective, that placed the following people in danger of serious injury:

Diane[12] - concussion, headaches, lower back pain, lacerations, whiplash and impaired cognitive functioning;

Graeme[13] (bus driver) - long standing psychological injuries including depression, suicidal thoughts, anxiety, disordered sleep, extreme fatigue, loss of interest in activities, flashbacks of the crash and PTSD;

Kayleen[14] - soft tissue injuries, ongoing headaches, and psychological injuries;

Nicole[15] - soft tissue injuries and ongoing headaches;

Tina[16] - soft tissue and psychological injuries;

Freya[17] - damaged tendons in finger, lacerations, bursitis to the hip and psychological injuries;

Pheobe[18] - soft tissue and psychological injuries;

Lulu[20] - back injury and psychological injuries;

Mia[22] - soft tissue and psychological injuries;

Jessica[24] - head and soft tissue injuries;

Ruby[25] - soft tissue and psychological injuries;

Ms Connor[26] (staff member) - concussion, micro brain haemorrhages, soft tissue injuries and PTSD;

Narleen[27] - concussion, whiplash and lower back pain;

Lina[29] - soft tissue injuries, torn quadricep muscle, concussion, muscle spasms and panic attacks;

Gabby[30] - compression fractures to the spine;

Taylah[31] - soft tissue injuries, whiplash, and concussion;

Breanna[33] - soft tissue and significant psychological injuries.

1. Charge 12 - rolled up charge: That at Pentland Hills in Victoria on 21 September 2022, you recklessly engaged in conduct, namely the driving of a B-double truck knowing that the brakes of the said truck and the trailers attached to it were defective, that placed the following people in danger of serious injury: Liam Ryan, Brendan Morris and Rodothea Kalisperis.

1. At the time of the collision, you worked as a full-time linehaul driver for a company known as "L & A Freight" operating out of a depot in Hallam. Your usual routine involved driving five nights a week between Melbourne and the South Australian border. You would pick up trailers in Melbourne and drive them to Nhill where you would swap trailers with another driver who had arrived from Adelaide. You would then return to Melbourne with the new trailers and finish your shift. You would ordinarily drive the same prime mover every shift however the trailers would change.
2. On 19 September 2022, after the shift before this collision, you identified a fault with the engine/exhaust brakes on the prime mover. At the end of your shift you messaged your supervisor stating, "engine braking is not working, use foot braking all the time".[34]
3. The following day, 20 September 2022, you arrived at your depot to commence your overnight shift. You were advised that the part needed to fix the engine brakes would not be available until the following day. You later told police that there were no other trucks to take, so you commenced your shift in the vehicle with the defective brakes. You then drove from Hallam to Dandenong where you collected two trailers and continued on to Nhill.
4. When you arrived at the changeover area at Nhill to swap trailers you met with Bryan Edgar who had driven up from Adelaide. As to the two trailers you were to tow back to Melbourne, Mr Edgar told you that "the trailer brakes are stuffed and if you've got to stop in a hurry you won't stop".[35]
5. Despite being informed that the trailers also had defective brakes you nevertheless decided to drive the prime mover, with those trailers attached, back to Melbourne.
6. Shortly after leaving Nhill, you conducted your own brake checks and confirmed that the brakes on the trailers were defective. When interviewed you described what you did in the following way:

Question: 'And did you do any checks of the trailer after you had that conversation with Brian?'
> >
> > Answer, 'As soon as I - after me break and I took off I was trying the brakes. All down the road when I left Nhill, when I got through Nhill ---'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, '---I was just - you know, you just do a little test of the brakes, you know.'
> >
> > Question: 'What do you mean, like, what - when you say testing the brakes ---'
> >
> > Answer, 'Well, you just ---'
> >
> > Question: '--- how were you testing them?'
> >
> > Answer, 'Well, you drive along and just start using your foot brakes.'
> >
> > Question: 'Mm'hm. And how was it responding when you were doing that?'
> >
> > Answer, 'It wasn't very responsive.'[36]

7. Having confirmed that the trailer brakes were not responsive, you continued to drive knowing that you also did not have the use of the engine brakes. You were asked about what your state of mind was at that time in your interview:

Question: '... so what did you think were the possibilities at that point when - so you've realised that you've got no engine brakes, you've got no trailer brakes - - -'
> >
> > Answer, 'Yep.'
> >
> > Question: '- - - effectively, what did you think the possibilities were for you?'
> >
> > Answer, 'I thought I was still fine.'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, 'Yeah. If I didn't think I was fine I wouldn't have - I wouldn't have proceeded, so - and I thought I was fine.'
> >
> > Question: 'So why did you think it was fine?'
> >
> > Answer, 'You just - your slow down points, your stopping points, you know, just if anyone passes you just leave a bigger gap, let everyone pass you - - -'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, '- - - you know. You've got to remember these are - you know, it was just endless trucks. Everyone's passing ya. You just let 'em get past you, let 'em get away from you, you know.'[37]
> >
> > .....
> >
> > Question: 'Mm'hm.'
> >
> > Answer, '- - - ..... I thought I was fine. If I didn't think I was fine I wouldn't have done it.'
> >
> > Question: 'O.K. So did you - - -'
> >
> > Answer, 'And that's the issue I'm living with.'
> >
> > Question: 'Did you consider the possibility that - like you've said that - as you're driving out you're testing them and they're not reacting - - -'
> >
> > Answer, 'Yep.'
> >
> > Question: '- - - pretty much at all. Did you think it was a possibility or did you consider the possibility that - what would happen in the event that you had to brake in an emergency?'
> >
> > Answer, 'No, no. No, I didn't.'[38]

8. You further explained to investigators that whilst the trailer and engine brakes were defective you still had prime mover/foot brakes. Those brakes however, were reliant upon air pressure to work efficiently.
9. You continued travelling east along the Western Highway towards Melbourne without incident until the area of the Pykes Creek Reservoir. At that point you encountered a steep descent where you say you 'used up all me brakes'[39]. By that, you meant that the air pressure in the braking system had become depleted. You continued through Pentland Hills about five or so kilometres from Bachus Marsh. You explained that you believed that in driving uphill, the air pressure would build back up. You described what happened next:

Answer, 'Now it sorta flattens out a little wee bit and then it sorta drops down, that second bit. By the time I got down to that where it flattens out a bit, I'd run out of air.'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, 'The alarms - when it drops down to, what is it, 30 per cent of the air pressure, alarms come on on the prime mover - - -'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, '- - - you know, "Low air, low air, low air," you know. But I thought, you know, I'll still be right. I'll - you know, it's a double lane. But then when you come around you sorta - that - but that flattens off and then you start going down. And then just as you come around that left-hand corner I then seen the sign. I knew I was fucked.'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, 'As soon as I seen that sign "road work ahead" I had absolutely no brakes, remember, no trailer brakes, no engines brakes, the foot brakes - you know, you're 62 tonne and you're going down a hill and you've run out of air - - -'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, '- - - nothing is gunna stop that truck.'[40]

10. At the point you refer to in that passage, the eastbound lanes of the Western Highway travel downhill until the start of the off ramp to Bachus Marsh. Normally that section of the highway is governed by a 110kph speed limit however at this time the speed limit was reduced to 40kph because the right lane had been closed with cones and traffic management vehicles due to an unrelated incident the night before.
11. On your way to Nhill you had seen that lane closure but had apparently forgotten about it[41].
12. As you travelled down that descent at speed, you manoeuvred your vehicle around some slow moving traffic and the traffic management vehicles. The Scania bus was in the left hand lane with a prime mover driven by Janice[42] immediately behind it.
13. Janice heard a transmission over her UHF radio alerting her to your vehicle moving quickly down the road. She looked into her side mirror and saw your truck approaching so she swerved to the left. Your truck passed her vehicle and collided into the rear of the bus driven by Graeme.
14. You impacted the rear driver's corner of the bus as your truck moved from the right lane into the left lane of the freeway. Dash-cam footage from Janice's truck was played in court during the plea hearing. It shows your truck careering into the back of the bus at speed with significant impact.
15. The collision caused substantial damage to the rear of the bus and forced it across the northern emergency lane where it struck and smashed through the barrier that bordered the northern edge of the eastbound lanes.
16. There was a steep embankment on that northern edge that dropped approximately 10 metres from the road surface. The bus travelled down that embankment before it started to slide and rolled several times ending up on its passenger side. The rollover phase of the collision caused significant distortion to the roof and cabin structure of the bus.
17. As a result of the collision three of the occupants were ejected from the bus, one of whom had not been wearing their seat belt because they had just resumed their seat after assisting a student. Most of the other passengers remained restrained by their seatbelts however, some were trapped by the damaged structure of the bus.
18. After your vehicle impacted the bus, the prime mover and its trailers travelled over 400 metres further east and came to rest on a reservation between the exit ramp to Bacchus Marsh and the freeway. The truck had sustained significant front end damage, trapping you inside the cabin.
19. After emergency services arrived, every passenger that had been on the bus was transported to hospital.
20. There were three traffic management workers on the road in the closed right hand lane who saw the collision. They rendered assistance to the passengers on the bus. They are the subject of Charge 12 (conduct endangering persons).
21. You were taken to the Royal Melbourne Hospital where you remained for an extended period. A blood sample was taken which was negative for drugs and alcohol.
22. Detective Leading Senior Constable Lindon Walker, a collision reconstruction expert conducted an analysis of the circumstances of this collision and concluded as follows:

"The Freightliner, while in the right lane, overtook a slower moving heavy vehicle, while also approaching a stationary VicRoads vehicle that was positioned in the right lane. After passing the slower heavy vehicle, the Freightliner moved quickly back to the left lane. Once in the left lane the front of the Freightliner impacted into the rear of the Scania. This impact was predominately front passenger side of the Freightliner into the rear driver side of the Scania. The impact occurred in the left traffic lane. > > This impact caused the Scania to veer left where it impacted and travelled over the Armco barrier, before sliding then rolling down the embankment. > > The Freightliner continued to travel east while sliding on the damaged front wheels. The Freightliner impacted (side swipe) the Armco barrier twice before coming to rest east of the area of impact."[43]

23. You were formally interviewed by police on 23 January 2023. You made extensive admissions, some of which have been extracted above. As to why you drove in these circumstances, you were asked:

Question: 'So why did you drive from Nhill?'
> >
> > Answer, ''Cause I was trying to do the right thing.'
> >
> > Question: 'What's the right thing?'
> >
> > Answer, 'Well, the right thing I know now would have been not to drive the trailers. It's a saying, you know - - -'
> >
> > Question: 'So - - -'
> >
> > Answer, '- - - you try to do the right thing, it always bites you in the arse. The right thing was - - -'
> >
> > Question: 'Yeah, I understand - - -'
> >
> > Answer, '- - - trying to get the trailers back.'[44]

24. I will refer to other aspects of your interview in dealing with your subjective circumstances shortly.

1. The Summary of Prosecution Opening sets out the legal basis for your plea of guilty to the charges of negligently causing serious injury in the following terms:

(a) He owed a duty of care to all road users travelling on the Western Freeway, Pentland Hills;

(b) He breached that duty of care by being criminally negligent, in that his actions in driving a prime mover and two trailers, when he knew that the brakes on both the prime mover and the trailers were defective, fell greatly short of the standard of care a reasonable person would have exercised, and involved a high risk that serious injury would result. The offender knew that the brakes were faulty. He knew that he would be driving on parts of the road which had steep descents that would be difficult to navigate with brakes that did not work. He also knew the risks to other road users if he were unable to stop the truck;

(c) The offender's breach of his duty of care was voluntary because he drove the prime mover and two trailers knowing that the brakes were defective on a part of the road which had a steep descent;

(d) Ten of the passengers who were travelling on the bus when it was struck by the prime mover suffered serious injury as a result of the collision.

1. With respect to the legal basis for the plea of guilty to the two rolled up charges of conduct endangering life, the Summary of Prosecution Opening states:

(a) He drove the prime mover and two trailers, despite knowing that the brakes on both the prime mover and the trailers were defective;

(b) His actions were voluntary, given that he knew the brakes were defective;

(c) Given that he knew that the brakes were defective, and that the road had a steep descent that would be difficult to navigate, he realised that his actions in driving the truck would place anyone on the road at that time in danger of serious injury;

(d) He acted recklessly in that he could foresee that there was an appreciable risk of serious injury as a probable consequence of driving the truck with defective brakes;

(e) He acted without a reasonable excuse for driving the truck when he knew about the defective brakes.

1. There are two considerations which make for an assessment of the objective gravity of an instance of negligently causing serious injury (NCSI). The first is the degree of negligence involved. The second is the seriousness of the injury caused.[45] I will deal with the first consideration in assessing the parties' submissions below.
2. I turn now to consider that second consideration a component of which is the impact this offending has had on your victims.
3. At the plea hearing, over a period of more than two days, 29 victim impact statements were read to the Court either personally or by the prosecutors on behalf of the maker of those statements. An additional 13 statements were submitted but, in accordance with the wishes of those victims, not read aloud in open court.
4. Given the number of victims and the extent of injuries they suffered it is not practical in these sentencing reasons to individually detail all the harm caused to every person impacted by this offence. Nor is it possible to refer to all those affected given that, understandably, some victims chose not to make victim impact statements.
5. I will attempt to refer to those that have made statements, but such reference will necessarily be brief and unlikely to do justice to the wide ranging harm described in those statements. I will first refer to those that sustained the serious injuries the subject of Charges 1 - 10[46] and then attempt to describe something of the impact on those who were placed in danger of serious injury.
6. For many, this experience was a nightmare. A pertinent example is the experience of one of the teachers on board the bus, Nathan. Nathan's daughter, Ashlee, was a student at the school and seated in the far rear corner seat of the bus. In his statement to police, Nathan described the 'crunch' of the truck's impact with the back of the bus, the rollover and the bus coming to rest on its side. He described trying to get his bearings in the darkness amidst the moans of the injured students when someone he described as frantic, almost hysterical, told him that Ashlee and Hailey were missing. He made his way to the back of the bus and saw that the 'back of the bus had been ripped off'. In that moment he did not think anyone could have survived that impact.
7. He described jumping out of the bus and frantically searching for the missing girls, moving bus debris and bushes, calling out and getting no response which, as he put it, 'cemented the idea that [Ashlee] was dead'. Eventually he found her alive although it appeared her foot had been amputated. He tried to comfort her but conscious of his responsibility as a teacher to the other students, he had to leave her in the care of man, who had stopped to help. He then went back to the bus to tend to the other students.
8. In his victim impact statement, Nathan described the 'dread and desperation' of that search for his daughter. He would often cry when he thought about the moment he found his daughter and saw 'her partially amputated foot flopping everywhere whenever she tried to move'. He described his psychological symptoms as severe and although he tried to return to work, he now accepts that he is unable to do so.
9. Ashlee, herself had no memory of the collision but its impact has changed her life immeasurably. In her victim impact statement, she described the constant invasive medical procedures involving some of "...the most shocking, terrible pain I have ever experienced". Her struggle is ongoing and she believes that it would have been "...easier if I had have died or my leg had been amputated".
10. Her mother summed up what her family had been through: "The accident has changed our lives in ways that we will never fully understand...the physical and emotional pain my family endures daily is a constant reminder of that tragic day".
11. Hailey was the other girl to be thrown from the bus. The injuries she sustained including 13 painful brakes that 'haunt my body everyday causing all sorts of pain to every part of my body'. The need for assistance to perform the most basic living tasks was a constant source of humiliation and embarrassment for her. Hailey lost the opportunity to participate in the sports that she loved and to perform in her schooling to the level she had previously. It has been, and continues to be, a relentless struggle for her. As Hailey's mother, who had to take six months off work to care for her, said in her statement, her daughter was living her best life until she sustained these life changing injuries.
12. Bethany's mother, was a teacher who took on the responsibility of attending the site of the collision and staying with the victims who were left waiting to be transported to hospital. At the time her own daughter, Bethany, had been taken to hospital with serious injuries. Bethany's mother described how conflicted she felt at the time and how psychologically damaging the experience was.
13. She does not feel she can now return to class room teaching. Of her daughter, she says that she does not now share 'even a vague resemblance' to the daughter she put on the bus that morning. She had been strong academically and emotionally astute but was no longer that person. Bethany's mother says she grieves every day for the loss of her 'pre-bus crash daughter' as does her husband and her other two children.
14. Bethany herself, struggled physically for many months after the collision and three years on still experiences pain and discomfort. She says she has not slept properly in three years and continues to suffer quite severe psychological symptoms.
15. Ms Taylor was another teacher, who despite being seriously injured, did much to assist in the immediate aftermath of the collision. I have taken her victim impact statement, which she did not wish to have read in open court, into account.
16. Mary, like so many involved in this collision, has had her life turned upside down as a result of the serious injuries she sustained and the trauma she experienced. She still suffers ongoing pain and feels acutely that she has become a burden to others. Her mother, made a statement on behalf of the family which she did not wish to have read out in court. That statement has also been taken into account.
17. Megan's statement was read to the Court by the school principal. The physical injuries she suffered still cause her immense pain years after this incident despite having been told they would get better over time. She suffers PTSD, worsening anxiety and depression. Her overall quality of life has been substantially diminished.
18. Kayla had always been a highly competitive and successful sportsperson. The collision had a dramatic effect on her well-being and her aspirations. Her parents, in their statement, confirmed that was so. I have taken their victim impact statements, which they did not wish to be read in open court, into account.
19. Jesse still suffers constant back and shoulder pain. The major concussion she sustained resulted in severe headaches, foggy vision, failing concentration and a debilitating fatigue. As she puts it, her post-concussion syndrome has dictated her life for the last three years. She lost well over a year of schooling and has struggled to keep up. She does feel a great sense of achievement to have undertaken Year 12 but her fatigue remains. She says she is learning to live with her pain. This has been a significant setback in her life which she is really only just starting to put behind her.
20. Many more were injured seriously, albeit outside the statutory definition[47].
21. Lina described the 'absolute chaos' shortly after the collision as the teachers, paramedics and others rushed around in a panic. She recalled shaking, crying and having what she described as a 'full panic attack'. Her mobility is still impaired and is medicated to deal with the psychological symptoms which she continues to suffer. Her mother describes the family as being broken by this incident and that they have had to work very hard to put the family back on an even keel.
22. Diane, sustained neck and back injuries and 'long concussion syndrome.' These injuries had a significant effect on her mental health, her sport and her schooling. The nature of her injuries were such that special seating arrangements were put in place so that she would be able to attend class. Her capacity to concentrate and study was impaired for some considerable time. Her parents and younger brothers made statements which were not read in open court but have been taken into account.
23. Taylah recalled hearing the high pitched screams of her peers as she was ejected through a window of the bus. The trauma of what she saw keeps replaying over and over in her mind, especially at night when she tries to sleep.
24. Ms Connor, a staff member present on the bus, suffered a minor brain bleed, severe concussion and soft tissue injuries. Aside from the debilitating effects of the physical injuries, Ms Connor experienced an ongoing sense of guilt and self-doubt because she was not, in the midst of her own concussion, able to help the students as much as she felt she should have. As part of her PTSD she still has nightmares and sees images of girls bloodied and unresponsive. Returning to work has been extremely challenging but focusing on her students has sustained her.
25. Freya, who sustained injuries to her head, hands, arms, her face and her right hip, has had ongoing psychological treatment, physiotherapy and chiropractic care. The impact on her quality of life has been far reaching. Although she has now to some extent recovered from her physical injuries, she continues to deal with the mental toll.
26. Jessica suffered an injury to her leg and concussion from which she has fortunately now recovered. She recalls at the time feeling as if she had let everyone down when she could not remember her lines for school performances. She provided a vivid description of the chaos and confusion that set in immediately after the collision.
27. Breanna, according to her father, has had 'a rough ride' since she was involved in the collision. She has variously suffered from anxiety, paranoia and depressive symptoms. Her school work has suffered and she has been experiencing panic attacks and intrusive nightmares. Both Breanna and her mother have provided statements which they did not wish to be read to the court. I have taken those statements into account.
28. Ruby described how everyone expected her to 'move on' from this incident but that she has not been able to do so. Everyday physical tasks are painful and exhausting. Her ability to focus and concentrate at school has been impaired. Overall, it has been a difficult and frustrating experience.
29. Mia still, at times, feels some residual physical pain but experienced quite significant psychological symptoms as a result of being involved in this crash. Her ability to focus and process information is diminished and she fears that disability will likely affect her future studies.
30. Kayleen has experienced 'significant emotional and psychological distress that continues to affect' her to this day. She struggles with anxiety, depression and what she calls catastrophising thoughts. At times she felt overwhelmed and had to reduce her study load. She has ongoing neck and back pain, noticeable facial changes and persistent migraines.
31. Lulu did not make a victim impact statement however her mother, made a statement in which she states she believes many of those involved had found it too painful to submit a statement of their own. She described what she saw as the wider impact of the collision and why some parents refrained from describing what they had been going through:

Over these years, I have witnessed the raw emotion of many of the adults involved. No one person will truly know the roll-on effect. In the first few days I visited some families of students and also teachers, to drop off a meal or two. Whilst I think that initially it was shock that I witnessed then, as time went on, the effects were really starting to show. Parents spoke of both the physical impact the crash had on their children, the roll-on effect it had on siblings and friends but few parents verbalised how they themselves were coping.

1. Lulu's mother said she never imagined that what she described as the roll-on effects of the crash would be so severe.
2. Clare made a statement that she did not want to have read in open court but which has been taken into account. Her mother, Lisa, however, did make a victim impact statement which was read by a prosecutor. She and her husband were one of the first parents on the scene and were overwhelmed with what they confronted. As she says 'watching girls on stretchers being taken away by ambulance, the blood on clothing and faces as well as the eerie calmness will be forever etched in my mind'. It was particularly hard to watch how her daughter was impacted by this incident.
3. Finally, with respect to the impact this offending had on those connected with the school, the school principal, submitted a statement which she did not wish to be read in open court. Respecting her wishes as I must, I will not detail its content. Nevertheless, it must be recognised that she has been the person who has had the ultimate responsibility over these last three years, to listen, to re-live and to care for those involved. That has been a lot to bear. Her leadership in managing this traumatic event for the school community at large ought be acknowledged.
4. Janice was the truck driver who veered to the left after being alerted to your oncoming truck on the radio. She saw the collision take place in front of her. What she saw has affected her in many ways. Even though she was, and is, a professional heavy vehicle driver she now suffers anxiety each time she drives and feels sick when she passes the crash site.
5. Graeme was the driver of the bus. He did not wish to have his statement read aloud in court. Suffice to say that Graeme has been deeply affected by what happened. Not a day has gone by since where he has not asked himself whether there was something more that he could have done to prevent this collision.
6. These are but brief summaries of the stories that describe the trauma derived from this collision. The breadth and depth of the impact this offending has had on so many victims, their families, friends and the wider community is immense and that is to say nothing of the likely impact on first responders. What I have summarised touches on just some of the impact.

1. In assessing these victim impact statements, I have had to remind myself not to become emotionally overwhelmed by the extent of the pain and suffering caused. That is important because in cases such as this there is always the danger that the extent of the harm caused may distort, impermissibly, a dispassionate assessment of the objective gravity of the offending.
2. Given that concern, it might be useful to briefly explain what the law says about how these statements are to be assessed.
3. S 5(2) of the Sentencing Act 1991 (Vic) requires that in sentencing an offender a court must have regard, among a large number of matters, to the impact of the offence on any victim of the offence, the personal circumstances of any victim of the offence and any injury, loss or damage resulting directly from the offence.
4. S 8K of the Act enables a victim of the offence to make a statement to the court "for the purpose of assisting the court in determining sentence". The statement should contain particulars of the impact of the offence on the victim and any injury, loss or damage suffered by the victim as a direct result of the offence[48].
5. In interpreting and assessing these statements, Parliament's express intention is to provide an opportunity for a victim to tell the Court about how the offence has impacted them and to make clear that a victim impact statement is not inadmissible "merely because it contains subjective or emotive material".[49] As I indicated to counsel on the plea, I would take a practical approach to assessing this material and I have done so.

1. You were charged with this offending at the time of your interview with investigators on 21 January 2023. Thereafter there were considerable delays in obtaining the large number of medical reports needed to support the charges. A contested committal hearing was held on 4 March 2024 which was concerned with the number and extent of those seriously injured. I was informed that criminal liability was not put in issue.
2. In this Court the matter was case managed to encourage resolution. On 31 January 2025, an application was made for a sentence indication which did not proceed, because the matter resolved as a plea of guilty. On 3 April, the plea in mitigation was due to proceed but you were, at that time, admitted to hospital in the wake of a drug overdose.
3. On 16 April 2025, you voluntarily surrendered yourself into custody to start serving your sentence.
4. The plea hearing proceeded over three days between 1 to 3 October 2025.

1. You were born in October 1962 and are now 63 years of age. You were 60 at the time of this collision. Importantly, you have no previous criminal convictions.
2. You were born in Rotorua in New Zealand but grew up in Hokitika on the South Island, being the second youngest of ten children. Your parents are now both deceased. Your father had previously worked in timber mills whilst your mother worked raising your family. Two of your siblings live interstate here in Australia, the rest remain in New Zealand. I was informed that you were not close to your family.
3. For your secondary schooling, you boarded at a school in Greymouth on the West Coast of the South Island. You appear to have done reasonably well at school leaving at the end of Year 11. Since that time, you have worked consistently as a truck driver and machine operator. You spent 30 years working in the gold mining industry, the first 10 or so years in New Zealand and the next 20 years in Australia after coming here in 1996.
4. Generally, your work involved driving excavators and other heavy machinery in the mines. You described this work as dangerous and stressful.
5. About five or six years before migrating to Australia, you met your first wife with whom you settled in Western Australia. Your wife there worked as a teacher's aide whilst you continued to work in the mining industry, where you were promoted to the role of supervisor or manager of several mines. You were together with your wife for about 20 years and there were three children of that relationship now aged between 28 to 38. You maintain a positive relationship with those children and I will refer shortly to the support they have provided to you.
6. Around 2004 you separated amicably from your wife and went to the Northern Territory for several years where you continued to work in the mining industry. Thereafter you worked in Queensland as a fly-in-fly-out machine operator. You met your second wife in around 2015 whilst working at a gold mine back in Western Australia. She also worked as a truck driver. There is one child of that relationship, a boy who is now about 8 years of age. You separated from your second wife in about 2018 and she moved to Melbourne with your son.
7. After the separation, you continued to work in Western Australia but would fly to Melbourne for a week or two at a time to spend time with your young son. I was told that during the pandemic, you decided that in order to spend more time with him, you moved to Melbourne and commenced working with L and A Freight as a truck driver. You had been working in that position for about two years before this collision.
8. Part of the material submitted in support of your plea in mitigation, included personal references from your two daughters, your first wife and two references from family members. On hearing of the collision, one of your daughters left her employment in Western Australia and moved to Melbourne to care for you as you recovered from the injuries you sustained in the collision. She stayed with you for about four months. Both of your daughters, in their references, detail the positive contribution you have made to their lives and, through your exemplary work history, to the community more generally.
9. Your former wife attests to your dedication as a father, as a hard working provider for your family and as a valued friend. In the experience of one of your former brothers-in-law who for a time worked with you at a mine, you are someone who has been responsible and who would take their workplace obligations seriously.
10. A consistent and prominent theme in all of these references is the remorse you feel for causing this collision. I will return to the issue of your remorse below.

1. In his submissions on your behalf Mr Edney, in a very helpful plea, emphasised the extent to which you had co-operated with police and volunteered inculpatory information. It was submitted that you had provided an "unadorned, unvarnished, compelling account" in which you had made sustained admissions as to your wrongdoing.
2. You told investigators that you knew when you commenced your shift on this night that the engine brakes had not been fixed. You then described what happened when you changed trailers at Nhill.

Question: 'Brian, O.K. And do you changeover with Brian - - -'
> >
> > Answer, 'All the time.'
> >
> > Question: '- - - all the time?'
> >
> > Answer, 'Yep.'
> >
> > Question: 'Yep. Did you have any conversation with Brian?'
> >
> > Answer, 'Yeah, we always do.'
> >
> > Question: 'Yep?'
> >
> > Answer, 'Yep.'
> >
> > Question: 'Just - - -'
> >
> > Answer, 'And he told me one vital - vital, crucial bit of
> >
> > information.'
> >
> > Question: 'Yep. And what was that?'
> >
> > Answer, 'The trailer's got no brakes.'
> >
> > Question: 'O.K.'
> >
> > Answer, 'Yep. He said, "The trailers' got no brakes. The
> >
> > trailer - the trailer brakes are stuffed and if
> >
> > you've got to stop in a hurry you won't stop."'
> >
> > Question: 'O.K.'
> >
> > Answer, 'They were his exact words.'
> >
> > Question: 'Yep, O.K. And what did you think when he told you
> >
> > that?'
> >
> > Answer, 'I thought, "Oh, fuck, this isn't good."'[50]

3. Mr Edney argued that your account of your conversation with Mr Edgar changed the whole complexion of this case. That was so because in a statement to police of 8 December 2022, Bryan Edgar had stated:

I had no issues with anything on the trailers I took over on that day. I remember on the freeway on the way out of Adelaide the trailers were performing normally as I could feel the trailer brakes working on the downhill runs exactly as they should. I could feel the trailers pulling back when I applied the foot brake to retard my speed.[51]

4. It would appear that Mr Edgar had not been frank with investigators. In that light, had you exercised your right to silence or lied to investigators, your knowledge of the defective trailer brakes may have been difficult to prove.
5. You told investigators, knowing that you had no trailer brakes that your plan was just to drive slower.[52] You were working on the basis that you were driving on a double lane road and thought you would be able to pull up in time. You said you thought you would be fine and explained why in the passage commencing at Question 753 extracted at paragraph 17 above. You agreed however that if there was an emergency you were 'in big trouble'.
6. As I have indicated, you told investigators that in driving the truck knowing of the defective brakes you were trying to do the 'right thing'.

Question: 'Then what was the risks? What were the risks that
> >
> > you knew were there?'
> >
> > Answer, 'I couldn't stop in time.'
> >
> > Question: 'But then why did you drive the truck? Trying to do
> >
> > the right thing?'
> >
> > Answer, 'Just trying to do the right thing. It's the only -
> >
> > it's the only - believe me, man, I thought about
> >
> > this every night.'
> >
> > Question: 'Mm.'
> >
> > Answer, 'Every night when I'm in hospital I thought about
> >
> > this. It's the only thing I can honestly say, you
> >
> > know.'[53]

7. During the course of the interview you took the investigators through the decisions you were trying to make as to how to stop as you descended the hill towards the collision site. You said that 'everything happened so quick' and whatever action you took would have catastrophic consequences. You maintain that you wished you had died in the collision. You stated:

...You got to remember at this stage, yeah.......... I was doing like, 90 K's or something, you know. You're stomping on the brakes, you've got the alarm screaming at ya, you know. And at that stage there I couldn't see on the up lane whether there was anyone there, you know. But it happened so quick. Happened so quick your options disappear like that. And before you realise it, there's the bus. Yeah. But, yeah - yeah, and that's it. Just no brakes. No brakes at all. That's just - yeah. You know, looking back, right at the very start I wish I had have just driven off the bank. You know, you can look back in hindsight, you know. But everyone keeps telling me I can't look at that. I've got to stop looking at that option, you know. But right at the start as soon as I seen that sign I should have just drove off the fucking road, left, over the bank, would have just been me. You know, would have just been me, you know what I mean? None of them schoolkids in that bus, that - those dudes working on the road wouldn't have to watch it. The other guy wouldn't have to watch it. You know, all these people affected by it, you know, but - yeah. Should have just driven off the bank. Should have just driven off the bank. I know I would have died but - you know, save all these other people misery and hell they're going through. It's just - - -[54]

8. Mr Edney submitted that your interview constitutes a wholesale acceptance of responsibility for the collision and that it shows you are profoundly remorseful. I should indicate now, having read that interview carefully, I accept that is so.
9. Counsel further highlighted the statement you made in your letter of apology to the effect that you had to explain what happened as you did, so that the victims would know the truth.
10. It was submitted that the approach you took in your interview invoked the principle to be taken from the Court of Appeal decision in Doran[55], namely that 'a considerable element of leniency' will enter the sentencing discretion '[w]here it was unlikely that guilt would be discovered and established were it not for the disclosure' by the offender.[56]
11. You sustained significant injuries in the collision. You were trapped inside the cabin of the truck for some time. You were conscious and could hear the screams of the injured students. Once you were conveyed to hospital, you were found to have sustained a left subcapital neck of femur fracture, left commuted proximal tibia and fibular fracture extending into the tibial plateau, multiple rib fractures and the left fifth metacarpal fracture of the hand. You required multiple surgeries including a total hip replacement. After two and a half weeks at the Royal Melbourne Hospital, you were moved to the Epworth Rehabilitation Hospital where you remained for about three months. You now walk with a significant limp and suffer chronic pain.
12. A summary of your psychological treatment from the rehabilitation hospital describes your depressed mood and distress "...in the context of accident related stressors"[57] including intrusive symptoms, avoidance, alterations in mood, cognitions and arousal. You were assessed as being at risk of suicide.
13. Sometime after you were discharged from hospital, you were treated by Mr. David Stickels, a senior clinical psychologist. He diagnosed you as suffering from a chronic pain disorder, an adjustment disorder with depressed mood and post-traumatic stress disorder. He noted that as your case drew nearer, you became actively suicidal. In your current circumstances your prognosis would appear to be fair to poor[58].
14. On 16 April of this year, you sought to surrender yourself into custody in the context of an overdose. Bail was revoked. It appears that you had difficulty coping and wanted to start serving the sentence that must inevitably be imposed for this offending.
15. The medical records from the prison catalogue consistent physical and psychological symptoms since being remanded, including severe pain and discomfort in your left leg, nightmares/visions, depression and a sleep disorder.
16. Mr Edney relied on the following matters in mitigation:

(a) Your plea of guilty;

(b) Your remorse;

(c) The extra curial punishment arising from the physical and psychological consequences arising from this offending. It was said that the burden of imprisonment will be greater upon you than a prisoner without those physical and psychological symptoms[59];

(d) Your otherwise good character having "led a blameless, pro social existence," having raised a family and worked consistently since the age of 16;

(e) A prisoner of your age in your condition is likely to be more vulnerable in prison; and,

(f) You are at grave risk of deportation which would be a significant additional punitive consequence. That is so because you have resided in Australia since 1996 and you have three adult children and one young son in this country. The risk of deportation will also render the experience of imprisonment more burdensome.

1. It was accepted that a term of imprisonment was the only possible outcome. However, it was submitted that there were many powerful factors in mitigation that needed to be reflected in the head sentence and non-parole imposed. It was submitted that the sentence imposed ought be constrained by the application of totality and its underlying principle of mercy.

Comparative sentences and sentencing principles

1. Mr Shaw, who appeared together with Ms Go, on behalf of the prosecution, took me to a number of previous cases that have dealt with heavy vehicle driving offending causing serious harm to, in most cases, multiple victims. In doing so he acknowledged that there is no case 'on all fours' with this case.
2. There is, I think, utility in examining those decisions in some detail given the complexity of this sentencing task. In doing so I have been mindful that past sentencing decisions are not to be treated as binding precedents[60].
3. In Halket[61] the offender was sentenced in respect of two charges of NCSI to a total effective sentence of seven years and six months imprisonment with a non-parole period of five years. On appeal he argued, unsuccessfully, that his sentence was manifestly excessive. Mr Halket was a professional truck driver who at the time of the collision was driving a heavy tip truck towing a topper trailer with a combined weight of 16 tonnes[62]. He was seen to have driven poorly over a distance of 2.4 kilometres before colliding into the back of a passenger vehicle which had been waiting to turn for about 60 seconds. The force of the impact pushed that vehicle into other vehicles causing the two occupants of the first vehicle very serious injuries, including, in one case, partial paraplegia. The truck was travelling at the speed limit of 60kph and did not slow or brake before the collision. The offender had used methylamphetamine the night before the collision and was shown to have been grossly sleep deprived.
4. Counsel relied on two passages from the joint judgement of Maxwell ACJ, Redlich and McLeish JJA which they submitted were apposite. First with respect to exposing other road users to risk their honours said:

... the applicant must have been aware - not least because he had already been driving for some hours that morning - of his impaired functioning and his inability to control the vehicle properly. Tragically, he did nothing about it. Instead, he continued driving, exposing himself and other road users to grave risk. The degree of risk was, of course, greatly magnified because of the size and weight of the truck. That meant, quite simply, that any collision was almost certain to have very serious consequences for any occupant of the other vehicle[63].

5. Second as to what should be done when it is clear that there is an inability to control a vehicle:

...The first, and most important, rule is that a person who is - or becomes - aware of his/her inability to control a vehicle properly should not begin - or continue - driving. The applicant's wilfulness is highlighted by his persistence in driving a heavy vehicle in a state of obvious impairment over such a distance. His culpability was properly to be judged as very high.[64]

6. In Gurovski[65] the offender drove his Freightliner prime mover in B-double configuration onto the wrong side of the road of the Calder Highway towards Mildura. He collided with an oncoming sedan seriously injuring its driver. She sustained extensive orthopaedic injuries and a traumatic brain injury. Her right arm was almost totally amputated and at the time of sentence, suffered ongoing pain and psychological damage. Mr Gurovski's offending was said to have been caused by fatigue and inattention. He was sentenced to three years' imprisonment with a non-parole period of two years.
7. On appeal against the severity of that sentence, the Court referred to some previous sentencing decisions for NCSI, including Harrison & Rigogiannis[66] and Barry[67].
8. In Harrison the offender caused very serious injuries to a passenger in his vehicle travelling through an intersection at more than twice the speed limit against a red light and with a blood alcohol reading of 0.184. He was sentenced to three years and six months' imprisonment with a non-parole period of two years.
9. In Rigogiannis, the offender caused very serious injuries to the driver of another vehicle by driving his van around a blind bend on the wrong side of the road at about 28 kilometres above the speed limit. Rigogiannis had a blood alcohol reading of .211 and some relevant prior history. He was sentenced to four years' imprisonment with a non-parole period of two years and nine months for the NCSI charge.
10. Both Harrison and Rigogiannis appealed.[68] Their appeals were heard at the same time. The Court found that the conduct of each offender fell within the upper range of seriousness. Each sentence was held to be well within range and, if not constrained by current sentencing practice, the sentences would have been inadequate. Henceforth, it was said, the courts should impose higher sentences for NCSI for higher range offending and the sentences of mid-range and lower range offending would also need to be increased to maintain appropriate relativity.
11. In Barry[69] the offender's vehicle veered onto the wrong side of the road seriously injuring a motorcyclist. Barry had not slept for 27 hours, was under the influence of ice and knew there was a risk he might fall asleep because he had already done so before the collision. The victim's injuries were extensive and necessitated the amputation of his right leg above the knee and remained in hospital for nearly four months. Barry was sentenced to 20 months' imprisonment and placed on a CCO for two years. On a Director's Appeal, that sentence was held to be manifestly inadequate. He was re-sentenced to five years' imprisonment with a non-parole period of three years.
12. Returning to Gurovski, the Court refused the application for leave to appeal and in so doing stated:

The cases to which we have referred indicate that a sentence to a term of imprisonment of 6 years or more is open for offences of NCSI by driving that fall within the upper range of seriousness and that a sentence of 5 years' imprisonment is open for offending in the middle to upper range. Although the facts of those cases differ from the present case, they dispel any notion that the sentence imposed on the applicant is manifestly excessive[70].

13. In Aston[71] the offender drove a bus carrying 14 passengers into the Montague Street Bridge in South Melbourne. Six passengers were seriously injured. At trial, Aston was convicted of six charges of NCSI and sentenced to a total effective sentence of five years and three months' imprisonment with a non-parole period of two years and six months. On appeal against conviction, verdicts of guilty for the lesser offence of dangerous driving causing serious injury[72] were substituted and he was sentenced to 305 days' imprisonment, being time served, and a CCO.
14. In clarifying what is required to make out the charge of NCSI, the Court made clear that what was required must be negligence of a high order:

...involving a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and a high risk that death or serious injury would result from the relevant conduct. The judge should also explain that, since the required negligence must be of a high order, and must involve a high risk of death or serious injury, the kind of negligence which might be constituted by momentary inattention or a minor error of judgment, or which might found a simple civil claim for damages, generally would be insufficient to establish the necessary high degree[73].

15. Whilst Aston's offending was held to be 'undoubtedly serious,' it was not accompanied by the aggravating features often seen in this type of offending. His personal circumstances were found to be exceptional.
16. In Towle[74] the offender drove along a country road with his four year old child on his lap, when he lost control of his car which veered across the road and struck a group of young people who had been attending a party at a nearby home. Six people were killed and four seriously injured. Towle knew there were likely to be numerous people in that area because he had seen them when driving past initially. In addition, he had been reminded of the need for care by his younger brother before he started his return journey.
17. At trial, he was acquitted of six charges of culpable driving and four charges of NCSI but convicted of the alternative six charges of dangerous driving causing death and four charges of dangerous driving causing serious injury. He was sentenced to a total effective sentence of 10 years' imprisonment with a non-parole period of seven years.
18. On appeal the sentence was upheld. The offender's failure to take sufficient care knowing of the risk to numerous people was an important feature of the offending. As in this case it was not a matter of unexpected circumstances or momentary inattention. Moreover, it was appropriate to cumulate a portion of the sentences to acknowledge the individual victims. Mr Shaw relied on the following passage from Towle:

In R v Scott[75], where the offender had been convicted of one count of culpable driving and one of negligently causing serious injury, the Court went so far as to say that it was > > incumbent upon the judge ... to cumulate a portion of the sentence on [the serious injury] count. Otherwise the victim, who - as the judge noted - is maimed physically and psychologically for life - becomes a 'meaningless statistic'.[76]

....[o]n this analysis, although there was only one act of dangerous driving there were 10 separate criminal acts, each such act defined by the death of or serious injury to a particular individual. Cumulation was necessary, as Winneke P said, to ensure that none of those individuals became a 'meaningless statistic'[77].

1. Finally, Mr Shaw referred to the proposition that there is an added responsibility on the drivers of heavy vehicles to drive with due care because of the substantial risk of dire consequences from any failure to do so. That point was made by Lee CJ at CL in Wilkins:

The large vehicles which operate on the road today .... are especially capable of producing enormous damage to human life if driven irresponsibly and it would be extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a court and claim that he should be sentenced and kept in gaol in respect of the death of only one[78].

2. The relevance of those past sentences is two-fold. First, they provide something of a very general impression as to the range of sentences previously imposed in heavy vehicle offending. To some, very limited, extent they therefore illuminate current sentencing practices which must be taken into account[79].
3. Second, these authorities assist with respect to the specific sentencing principles that apply to heavy vehicle collisions involving multiple victims. In particular that the drivers of heavy vehicles bear a greater responsibility to take appropriate care and not take undue risks. Moreover, where there are multiple victims a sentencer should strive, to the extent possible, to acknowledge individual victims so that they are not seen as meaningless statistics. As I will explain shortly there is quite some tension between that latter principle and the application of the principle of totality which must also be accommodated in determining and structuring the sentence to be imposed here.

1. The basal prosecution submission was that this offending was an objectively serious example of this kind of offence and that your moral culpability was high.
2. You were a professional driver with decades of experience in driving heavy vehicles. It was submitted that you well understood that you needed to be cautious when driving a heavily loaded prime mover with trailers because it took longer to stop such a vehicle. You travelled back and forth over this road five times a week and knew it well.
3. You also knew that the engine brakes on this prime mover were defective. Nevertheless, you made the decision to drive it. Then, once you got to Nhill and exchanged trailers, you knew that they also had no brakes. In spite of that knowledge you made the decision to continue to drive and take the risk that you would be able to slow or stop as required. In that decision, it was submitted, you had abjectly failed to consider your duty of care to other road users.
4. With respect to your driving as you approached the collision site, it was submitted you well understood that all the air pressure in the foot brakes had been used up in the descent at Pentland Hills. You knew then that "you can't stop the prime mover with trailers" in those circumstances.
5. It was submitted that it could not be said that this collision was the result of a momentary piece of inattention or some minor error of judgement. Rather, your actions in driving as you did fell greatly short of the standard of care a reasonable person in your circumstances would, and should, have exercised and involved a high risk that serious injury would result. In the event, that risk materialised with catastrophic consequences.
6. In those circumstances your moral culpability for this offending should be assessed as very high.
7. As the victim impact statements attest a large number of people sustained significant psychological and physical injuries, 10 of them serious as defined by the Crimes Act 1958 (Vic).
8. Your conduct must therefore be denounced and the sentence imposed must emphasise general deterrence. The only appropriate sentence was a head sentence with a non-parole period. It was accepted that there should be some concurrency between the sentences for each offence given they are derived from one act. However, it was submitted, adopting the language used in Towle, that each individual victim should not be reduced to 'meaningless statistic'.

1. In assessing these submissions it might be useful to say something of what is meant by totality. The application of this principle is of primary importance in ensuring that the sentence imposed is 'just and appropriate'.

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate".[80]

2. In applying the principle it may be necessary to reduce a sentence comprising cumulative sentences made up of correctly calculated individual parts if the total effective sentence "...is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose 'a crushing sentence' not in keeping with [the offender's] record and prospects".[81]
3. The principle ensures that the total effective sentence imposed is proportionate to the offending and properly synthesises due mitigation. The difficulty here is to tangibly recognise the harm caused to each victim, as the prosecution contend, whilst limiting the total effective sentence so as to keep the sentence proportionate and ensure it does not 'crush' the offender, as the defence contend.
4. Where that balance may be struck in a case of this kind was explained to some extent by N Adams J in Davidson[82]:

In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them....By further way of analogy, if a driver acting in a criminally negligent manner, such as this applicant, collided with a school bus and killed 20 children, the application of the totality principle may lead to a result in which there is a relatively short portion of the total sentence attributable to each additional death. That is not to say that the harm to the victims and the community as a result of those deaths was any the less; clearly the unspeakable loss for the families of each child would be the same. But the fact that the proportion of the sentence which could be seen to reflect each death was lower than it would have been had there only been one death is a consequence of the proper application of the totality principle.[83]

5. It follows that in cases where there are multiple victims harmed by one criminal act, it will be necessary to cumulate a shorter portion of the sentences imposed for each additional NCSI beyond the first charge than might otherwise be the case. However, that is not to say that the harm to those victims is any less. It is merely a reflection of the proper application of the principle of totality. That said, there will still need to be tangible recognition of each individual.
6. I will now deal in turn with the matters advanced in mitigation.
7. As to your plea of guilty, I accept that in light of the answers you gave in your record of interview, there was never any doubt as to your criminal liability for these offences. There was, what counsel characterised as, a 'lawyers committal' directed to the issue of whether some of the victims' injuries were serious for the purposes of the Crimes Act definition. I note that a number of victim impact statements lamented the delay in the resolution of this case. Nevertheless, I accept that a legitimate issue needed to be litigated and that your plea quickly followed on from an agreement as to the appropriate charges.
8. Allied to, and consistent with, your plea of guilty, is the remorse you have expressed for causing the harm that you have. In my view the evidence of that remorse is very strong. It starts with the concern you showed for the passengers in the bus when you were trapped in your own vehicle after the collision. It is evident in the reports of the psychological treatment you received in rehabilitation and in the community. It is palpable in the record of interview and the personal references submitted on your behalf. It accords with my own observations of you at pre-trial hearings and on the plea.
9. Genuine remorse, as opposed to self-pity or depression, is not something a sentencing judge can always be confident about. In your case however, I am well satisfied that virtually from the outset, you appreciated the wrongfulness of what you had done and the harm you had caused and have since acted, to the extent possible, to clear your conscience. In so doing you have taken full responsibility for your offending and facilitated the course of justice. In those circumstances the law requires that there should be a substantial reduction in the sentence otherwise imposed.
10. Beyond those considerations, I accept that the 'Doran discount' should operate to further mitigate your sentence. Offenders should be encouraged to bring all of the relevant facts to investigators attention even where, as here, it discloses aggravation. Kirby J in Ryan[84] referred to the public interest in an offender's public confession of wrongdoing. It provides understanding to the victims of crime and vindicates the public process of punishing and deterring crime. Offenders should therefore be encouraged to make full confessions through an added 'element of leniency'.[85] It follows that your account, particularly in so far as illuminates your state of knowledge of the defective brakes, should, and will, merit a further reduction in sentence.
11. Both parties accepted that under the Migration Act 1958 (Cth) your visa entitling you to remain in this country will be cancelled once you have been sentenced for these offences. Whilst you have the right to appeal against that cancellation, the prospects of successfully doing so appear remote. You have lived in this country for close on 30 years. Your family, including your young son, will remain in this country. That enforced separation constitutes an additional punitive consequence and will be taken into account in mitigation.
12. I am also satisfied that the time you spend in prison will be particularly burdensome for you due to:

(a) The physical and psychological injuries you received in the collision[86];

(b) Your vulnerability as a disabled prisoner; and,

(c) The knowledge that upon release you will be deported.

1. It is significant that no previous criminal or driving convictions were alleged against you. You have, other than in this offending, led a productive law abiding life which is to your credit.
2. These findings as to mitigation lead me to the view that it will not be necessary to emphasise, to any great extent, the sentencing objectives of specific deterrence or protection of the community in the sentence imposed. They also suggest that your prospects for rehabilitation are good.
3. Returning however, to the issue of remorse, I must make clear that what I have found to be your genuine remorse cannot be allowed to obscure the harm this offending has caused. Nor can it displace the need for the gravity of that offending to be reflected in the sentence imposed.
4. The maximum penalty for NCSI is 10 years' imprisonment. The maximum penalty for conduct endangering persons of serious injury is 5 years' imprisonment.
5. As I earlier indicated, there are two considerations which make for an assessment of the objective gravity of the offence of NCSI. The first is the degree of negligence involved. The second is the seriousness of the injury caused.
6. With respect to the first consideration, the circumstances in which you drove down that hill to collide into the Scania bus are not in dispute. From Nhill onwards, you knew you were taking a serious risk. Even when your foot brakes failed, you persisted in running that risk as it became more acute.

Question: 'O.K. So at the point where you've got to Pikes
> >
> > Creek - - -'
> >
> > Answer, 'Yep.'
> >
> > Question: '- - - and the alarms are going off and you've got no
> >
> > brakes - - -'
> >
> > Answer, 'Yep.'
> >
> > Question: '- - - why didn't you pull over?'
> >
> > Answer, 'Because I knew I'd be all right.'
> >
> > Question: 'What do you mean by that?'
> >
> > Answer, 'To be - I'm being totally honest, because I knew I'd
> >
> > be all right. It's a double lane and I knew I'd
> >
> > make it down there.'
> >
> > Question: 'Mm'hm.'
> >
> > Answer, 'Yeah. All I want to do was get to that rest area
> >
> > at - what is it - Melton.'[87]

7. As I have noted, you concede elsewhere in that interview that you really did not consider what you would do if confronted with having to brake in an emergency[88].
8. True it is that you were not affected by drugs, alcohol or fatigue which would otherwise aggravate your offending. Nevertheless, there can be no question that you should never have driven out of Nhill. There can be no question that having done so you should have pulled over and stopped well before this collision. Your failure to do so fell so far short of the standard required of a reasonable truck driver, that it amounts to a very serious instance of criminal negligence.
9. How you thought you 'would be fine' is difficult to fathom. You were an experienced professional driver. You knew your truck. You knew the road. You knew that you were carrying a heavy load. You knew the risk was, to use your words, 'you couldn't stop in time'. The risk that posed to other road users is not just a matter of hindsight, it must have been manifest at the time. It follows that your moral culpability for this offending must be assessed as being very high.
10. The second component of the assessment of objective gravity related to the extent and number of injuries caused by that criminal negligence. Here the summaries of injuries sustained together with the victim impact statements speak for themselves. They make it plain that the devastation, pain and ongoing debilitating effects suffered by the passengers, their families and the wider school community has been catastrophic. The sentence imposed must recognise the harm caused to so many victims.
11. Given the seriousness of your breach of the duty of care you owed to other road users, your high moral culpability and the devastating harm caused, the sentence imposed must unequivocally denounce what you have done and in no uncertain terms convey to those driving heavy vehicles that the utmost care is required.
12. It follows that the sentence now imposed will predominantly emphasise the sentencing objectives of denunciation and general deterrence though that emphasis will be constrained, as I have endeavoured to explain, by the principle of totality.
13. Save for Charge 1, the sentences imposed in respect of the NCSI charges will not distinguish between individual victims. Each victim will be acknowledged but not ranked as to the relative harm suffered. To do otherwise would be fraught given the myriad of ways in which victims have been impacted.
14. Finally, it should be noted that in formulating and imposing the total effective sentence, I must assume that you may serve every day of that sentence. It should also be understood, that the fixing of the non-parole period does not determine when you will be released, it merely determines that from the expiration of that period, whether, and/or when, you are released on parole will be at the discretion of the Parole Board.

1. Taking all relevant matters into account you will be sentenced as follows:
2. Charge 1, negligently causing serious injury to Ashlee, you will be convicted and sentenced to a term of imprisonment of 4 years and 9 months.
3. Charge 2, negligently causing serious injury to Ms Taylor, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
4. Charge 3, negligently causing serious injury to Bethany, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
5. Charge 4, negligently causing serious injury to Mary, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
6. Charge 5, negligently causing serious injury to Hailey, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
7. Charge 6, negligently causing serious injury to Megan, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
8. Charge 7, negligently causing serious injury to Nathan, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
9. Charge 8, negligently causing serious injury to Kayla, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
10. Charge 9, negligently causing serious injury to Jesse, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
11. Charge 10, negligently causing serious injury to Ms Martin, you will be convicted and sentenced to a term of imprisonment of 4 years and 3 months.
12. Charge 11, conduct endangering 21 persons, you will be convicted and sentenced to a term of imprisonment of 3 years and 3 months.
13. Charge 12, conduct endangering three persons, you will be convicted and sentenced to a term of imprisonment of 2 years and 3 months.
14. I will further order that nine months of the sentence imposed on Charge 2, nine months of the sentence imposed on Charge 3, nine months of the sentence imposed on Charge 4, nine months of the sentence imposed on Charge 5, nine months of the sentence imposed on Charge 6, nine months of the sentence imposed on Charge 7, nine months of the sentence imposed on Charge 8, nine months of the sentence imposed on Charge 9, nine months of the sentence imposed on Charge 10, nine months of the sentence imposed on Charge 11 and six months of the sentence imposed on Charge 12 be served cumulatively upon the sentence imposed on Charge 1.
15. That renders a total effective sentence of 12 years and 9 months' imprisonment. I will fix a non-parole of 8 years.
16. I will further order that any licences held by you under the Road Safety Act 1986 (Vic) be cancelled and that you be disqualified from obtaining any further such licence for a period of four years.
17. I will declare pursuant to section 18 of the Sentencing Act 1991 that you have served 230 days by way of pre-sentence detention in respect to the sentences just imposed. I will cause that declaration to be noted in the records of the court.
18. I will further declare pursuant to section 6 AAA of the Sentencing Act 1991 that but for your plea of guilty, you would have been sentenced to a total effective sentence of 16 years and 9 months' imprisonment and I would have fixed a non-parole period of 12 years and 9 months. I will cause that declaration to also be noted in the records of the court.

[1] Relevantly, serious injury is defined as an injury (including the cumulative effect of more than one injury) that - (i) endangers life; or (ii) is substantial and protracted; s 15 Crimes Act 1958.

[43] Statement of Detective Leading Senior Constable Lindon Walker, 16 November 2022 , deps 640.

[45] Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619, at paragraph [44].

[46] Ms Martin (staff member), the victim in respect of charge 10, did not submit a victim impact statement.

[48] Sentencing Act 1991 (Vic), S 8L (1).

[49] Ibid, S 8L (4).

[51] Statement of Bryan Edgar, dated 8 December 2022 at paragraph [13].

[55] Doran v The Queen [2005] VSCA 271; Latina v The Queen [2015] VSCA 102 at [12].

[56] R v Ellis [1986] 6 NSWLR 603 per Street CJ at 604.

[57] Psychology Summary, Robyn Molyneaux, Psychologist (Clinical Psychology Registrar), 31 August 2023, p 1.

[58] Report, David Stickels, Senior Clinical Psychologist, 19 January 2025, pp 4 & 5.

[59] An initial submission that the sixth limb of Verdins that imprisonment would have a significantly adverse impact on Mr Russell's mental health was not pressed.

[60] Cutri Fruit Pty Ltd v The King [2025] VSCA 173 per Kidd JA at paragraph [31].

[61] Halket v The Queen [2016] VSCA 221.

[62] It is to be noted that the combined weight of the truck involved in this collision was in the order of 62 tons.

[65] Gurovski v The Queen [2018] VSCA 3.

[66] Harrison & Rigogiannis v The Queen [2015] VSCA 349.

[67] DPP v Barry [2017] VSCA 344

[68] Harrison & Rigogiannis v The Queen [2015] VSCA 349.

[69] DPP v Barry [2017] VSCA 344.

[70] Per Whelan and Kyrou JJA at [78].

[71] Aston v The Queen [2019] VSCA 225.

[72] Punishable by a maximum sentence of five years imprisonment as opposed to a ten year maximum in respect of NCSI.

[73] Aston at paragraph [70] per Priest, Beach and Kaye JJA.

[74] The Queen v Towle [2009] VSCA 280.

[75] [2003] VSCA 55; (2003) 141 A Crim R 323.

[76] Towle at [96]; Ibid at paragraph [25]; Ibid 336 (Winneke P, with whom Phillips and Buchanan JJA agreed). See also DPP v Whittaker [2002] VSCA 162; (2002) 5 VR 508, 514; Gany (2006) 163 A Crim R 322, 331-2.

[77] Towle at paragraphs [96 - 97].

[78] R v Wilkins (1988) 38 A Crim R 445, at 449 -450; Referred to in Towle at [104]

[79] Sentencing Act 1991 (Vic) S 5(2)(b).

[80] Principles of Sentencing, D A Thomas, 2nd edition, Heinemann London, 1979; p 56.

[82] Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214.

[84] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267.

[85] Ibid per Kirby J at 294 - 296, [91] - [98]; R v Ellis (1986) 6 NSWLR 603 at 604 per Street CJ.

[86] The effects of the injuries will persist beyond the term of imprisonment served and constitute extra curial punishment.