DPP v Singh [2020] VCC 719

Civic Transport which was the company your ultimate employer contracted to. You started work for that employer Ermes Transport in October 2016. The truck you were driving on the day in question was one you had driven since December 2016.

6. Truck weights are calculated in a variety of ways. The summary referred to a 14-tonne truck and to the load being 13.2 tonnes. There was a suspicion that the first of those figures was not the unladen weight of the truck. That has been confirmed by the prosecutor, with the TARE or unloaded truck weight set out in the certificate at p.520 of the depositions. The truck weighed 8,420 kg and on top of that of course was the load of 13.2 tonnes of soap. All up then around 21.5 tonnes. I note that seemingly there was a lower figure of 19.76 tonnes in the defence expert report. It does not matter one way or the other. The weight did not cause the accident and in terms of the destructive capability of a runaway truck, a tonne or two here or there makes not one jot of difference. I will just refer to it as 20 tonnes which is close enough. In common with virtually all of the fleet owned by that company, it was inadequately maintained by the owner Mr Vangelas. You were certainly not responsible for the maintenance of the vehicle. It had nothing to do with you. In fact, you had in all probability never driven a well-maintained truck in the course of your short employment with that company. You had raised no concerns in relation to the brakes on the truck and I will sentence on the basis that up until the day in question, you had not noticed anything of concern. You had though driven it quite some distance on the morning in question prior to the collision. At the soap factory, you had given instructions to a forklift operator to load a number of pallets of soap up against the front of the load bed as there were no tie down points over the rear wheels. The loading of the truck on your instructions placed far too great a weight above the front axle, something which would tend to impact on the efficiency of the braking, though there is no suggestion that you would have appreciated that fact. In fact I am sure you did not understand the implications of the way the truck was loaded or you simply would not have given those instructions.
7. However there was a much bigger issue in terms of the brakes than merely the loading of the truck. The slack adjusters on the truck's brakes were not properly adjusted and they control the extent of braking available in an emergency setting. When you drove the truck away from the soap factory, you really only had front brakes and with an overloaded front axle. You had no emergency braking capacity. Now of course your relative inexperience as a driver I am sure would have had some role to play in all of this, certainly in the faulty load distribution. Regrettably though, you continued driving and it is inescapable that you must have and in fact did have some appreciation of the poor operation of the brakes. That much is conceded on your plea. These faults in the braking system were not some catastrophic failure that could catch someone totally unawares. That was not the nature of the fault. As you drove away from the factory, in fact a number of motorists observed you using an unusual braking system or pattern. It was clear that you were aware of some problem. I am sure you were not aware of the precise issue with the slack adjuster, how could you be, but you were certainly aware that you had ineffective brakes. In fact, the functioning of the brakes would have further deteriorated as you drove and stopped and then resumed which you did in the course of that journey away from the soap factory. So much is clear from the statement of Mr Smith which I was referred to by your counsel. It is not as simple as you knowing that the truck had no brakes and then weighing up the risks and then deciding to drive it. That is not the position. That is not what happened. If that had been the position no doubt it would have founded culpability under the more serious offence of culpable driving based either on recklessness or gross negligence. I am not dealing with you for that offence.
8. As you drove the truck towards the factory to make the collection of the soap, the braking would have been more effective than after the truck was loaded and then from that point, there was a continuing deterioration of the functioning over the course of your journey. You could and you should have stopped. You were after all driving a sizeable truck with thirteen tonnes loaded up onto the tray, a vehicle which without proper brakes was a danger to the public and so it proved to be. Not for you but for a totally innocent road user. You had a choice. To continue driving or to stop. No doubt it would have been inconvenient to stop the truck and ring in to your employer and report your concerns and arrange somehow for the transfer of the load. No doubt you hoped to nurse the vehicle along and complete the delivery and then report the fault. But that required you to drive a truck that no-one sensibly should have driven. Once you continued to drive, other road users were put in peril.
9. You drove the truck through a number of major intersections along Mountain Highway before the incident. You drove this truck some seven kilometres that day after it had been loaded up with the soap and you knew the brakes were not functioning correctly. Exhibit C is a collection of satellite photographs, one marking out the timing and the other the distance travelled after you left the soap factory. There are some other photos of Boronia Road in the depositions at p.428 and the collision scene is depicted in the booklet of photographs marked as Exhibit B.
10. Ultimately you drove down the hill on Boronia Road at about 8.50 am. The lights down the bottom of the hill were red and a completely innocent female motorcyclist was stationary facing that red light. As you came down the hill you tried to use the exhaust, foot and emergency brakes but you just could not stop. You sounded the horn. I am sure you did everything you could but you were unable to stop and collided with the poor female motorcyclist Ms D'Arne De Leo. She was an off-duty police member who was on her way to work a shift at the Fitzroy police station. Instead, she was killed instantly, mercifully I am sure, without any sense of what was happening.
11. You stopped. You were distressed at the scene and told another motorist that you knew the brakes were not right or not working. Words to that effect which are set out in the opening.
12. I will not descend to the detail of the forensic and mechanical examinations referred to. They disclosed the faults and the contributing factors which I have described. You were travelling at a minimum of 33 kph when you impacted

Ms De Leo. Speed was not the issue nor drugs or alcohol or inattention. The tyres of the truck were bulging indicating overloading. Brake testing was conducted at the scene but it was called off as it was just too dangerous, though again, I note the opinion as to the progressive nature of the brake fault. You were interviewed on the day and made no admissions to any knowledge of faults or to having made any oral admissions at the scene to the other civilians.

13. There is a long procedural chronology or history set out at the end of the opening and I will not detail it in my reasons. There had been serious concerns as to your mental health and fitness to plead at one point. You had been bailed but then failed to appear in December 2019 and went into custody on 8 January this year, when your bail was then revoked. All up as at the date of the plea, you had spent 145 days in custody, but that figure has of course since risen.
14. So much then for my brief summary of the summary. I will sentence in accordance with the full factual statement that is the agreed statement of the facts. It is no part of the prosecution case or yours that there was some sudden or catastrophic failure or that you only noticed some issues with the brakes after it was too late and you had commenced your descent down that hill. That of course would not even found a charge of dangerous driving causing death if that is what took place. Rather, it is accepted that in the journey from the soap factory, you had noticed that your brakes were not working appropriately and you failed to pull over. They then were deteriorating further up to the point that you then crested that hill and began your descent and by then of course, you had passed the point of no return.

1. I turn now to the impact of your crime. D'Arne De Leo was 45 years of age at the time of her death back in January 2017. Your actions on 12 January 2017 have dealt a massive blow to her loved ones, and there are many of them. On the day of the plea, we had relatives, friends, colleagues and squad mates, in fact over 40 people connected up on the WebEx hearing, not to mention the immediate family members who were permitted to attend court. Had we not been in the midst of the COVID-19 pandemic global pandemic, the large Ceremonial Court where the plea was held would have been heaving with people. The same applies today. Many people joining are joining the WebEx because there are the limits on how many people can actually physically enter this court and we are sitting in a smaller court today.
2. D'Arne De Leo is deeply missed by many. By her partner Krisztina, by her mother up until her mother's death last May. By her father. By her sister. By her uncle and by a family friend, that friend's husband and their two daughters. By so many more, that much is plain.
3. Every time I sit in this sort of case and observe the reading of victim impact statements, it is driven home to me, forcefully, that no one ever expects to lose a family member on the road and that no-one can ever know in advance of this sort of act how it really will impact upon them, until it does. There is just no way of preparing for this sort of sudden and unexpected loss.
4. D'Arne De Leo was 45 years of age. She had so much to live for, so many things still to achieve in her life and so many who deeply valued her.
5. By your actions you have forever changed the lives of all those who knew or loved her, not just those who have prepared victim impact statements. I know from the material filed on your behalf that you well recognise the grave consequences of your act.
6. A number of victim impact statements were filed in the course of the plea. Three of the victim impact statements were read out aloud by their authors:

Krisztina Toth read hers. Patrick De Leo read his and Sharna De Leo read her own impact statement but also had the sad task of reading her deceased mother's impact statement. No issue has been taken with the form of the impact statements. In these COVID-19 times, there have been difficulties in terms of signing documents or having them witnessed. Further Jann De Leo died in May of last year and her impact statement remained incomplete at that time. Now there could have been some legalistic stance taken to the receipt of some of these materials. I asked Ms Wallace directly and she said that she took no issue at all with the materials being relied upon in their present form. If I may say so, that was a most sensible and very sensitive concession and I thank you and her for it. It would have been most unfortunate for instance to have had the mother's description of the impact not aired in these proceedings.

7. I have read that material again since the day of the plea. It might be sufficient simply for me to say that this family's loss has been vast and the impact of your crime profound and then move on to discuss matters raised on your behalf. Well I will move on to those matters soon enough but I will dwell for one moment on the impact materials filed in these proceedings. This is after all the one occasion that a person has to describe the impact of a crime and here the crime has caused the loss of a loved one.
8. I will not go into the full detail of the various statements, but feel I should at least mention some aspects.
9. So Krisztina Toth has lost her partner of 13 years. Her partner in life. The person who knew her better than any other, not just a partner but as she describes her best friend and someone with whom she had navigated life together for so many years. She has been deeply affected in every imaginable way and has changed so much. Anxiety, depression and a deep loss of enjoyment in her life. She has been under medical and psychological care. Work has been problematic for her and she has still not been able to go back to full time work. She relives the day that her life partner died and the manner of the news being broken to her. They were best friends and she feels a strong sorrow in this loss and in the future without her partner's love, guidance and support. She has become a very different person. There is sadness and anger, anger at what she has lost, anger at what D'Arne has lost and what others have lost including for instance D'Arne's God daughters. All the many milestones which stretch ahead which will always be tinged with sadness. All the things they did not share including Kristina having her partner by her side providing support when Krisztina's own father died. Well, she will carry the impacts of your crime for the rest of her days.
10. So it is, then, that her mother and father have lost their oldest daughter. As you know, D'Arne De Leo's mother, Jann, died about a year ago and the last couple of years of her life were marred by her daughter's death. In common with most parents, she had the understandable expectation and hope that her children would survive her. She had more reason than most to believe that highly likely as she had some very serious health issues. On the radio that morning she heard a report of the details of a motorbike fatality. She knew the route her daughter took to work so she had some sense of uneasiness. She did not want to ring her daughter's partner Krisztina and cause her any unnecessary panic. She had done something like that some years before and it was all a false alarm. So instead, she went about her business. Then she got the call from a police member asking her if she was D'Arne's mother and she just knew. She did not need to be told. She was in the supermarket when she received the call that so changed her life. The mother speaks of the love for her daughter and the many things that were lost: the hugs, the celebrations, the bittersweet nature of Mothers' day. Nothing was the same ever again for her. Sadly, she correctly predicted that she may not be able to see out the trial process owing to the terminal diagnosis which had been delivered to her. She so desperately wanted to be present as a voice for her daughter and to see justice done. Well she will not see justice take its course but her voice from a little over a year ago rings out loud and clear in this court. Her surviving daughter Sharna very bravely read out her mother's words. The death of her oldest daughter affected every aspect of the last two years of Jann De Leo's life. She recognised that you were probably remorseful but that did not help her as her daughter's death was just so avoidable.
11. D'Arne's fathers' impact statement is quite succinct but no less powerful. He speaks of the sadness and grief which entered his and his wife's lives. He has suffered the double blow of the death of one daughter and then the loss of his wife of many years and says it is too hard to overcome. If anyone had a reason to wish ill of you or to want revenge upon you, it would be him.
12. Mr Singh, listen very carefully. It is a pretty remarkable impact statement in that the father of your victim says that he does not want revenge and does not hate you. He wants you not to let the death of his daughter stop you from being a better person and thinks that would be the way his daughter would think as well. He concludes by saying that someday he hopes he can make his daughter proud of him for being her father. If I may say so, having and then publishing such sentiments as those in his impact statement would surely do so.
13. A sister has lost her big sister. Sharna De Leo describes receiving that awful phone call and then the overwhelming events of the day. The fear of how her mother would take the news and feeling that her life had forever changed. Well of course it had. She described her early memories of following around her big sister and the way in which then and later she drew such support from having a big sister. She mourns the loss of opportunity to grow older with her sister. She observed the heartbreaking impact upon her parents and the loss of her mother's spark. Sharna promised her mother in the weeks before

Jann De Leo's death in May of last year that she would see the matter through at court and she has honoured that promise so admirably not just by attending, not just by reading her own victim impact statement but by also reading out her mother's impact statement. How difficult that must have been for her.

14. When the time came as it did on Mothers' day last year to grieve for the loss of her own mother, she did not have her older sister by her side and felt that loss deeply.
15. She puts her finger on something that still seems to be lost on so many motorists in the community. A name in the paper, a fatality in a traffic incident, well it is not just a name in the paper. It is a person, one who has been loved and who means so much to others. A sister, a daughter, a partner, a niece or cousin or godmother or friend or colleague. There is not a day that goes by where Sharna does not think of her sister. She thinks of what D'Arne's future would have held. She thinks of all the conversations that they will never have. She has been held in suspense as the court process took its course. It has all taken a heavy toll. She could not have put it any better than she does when discussing the passage of time since her sister's death and the sense she feels that some may think but never say that she should be somehow 'over it by now'. She concludes by saying:

'But that is the thing, you are never over it, every day you live with the grief. Every day you live your trauma and always there is sadness for a precious life lost'.

1. The prosecutor read out the uncle's statement as well as the statements from the close family friend and her young daughter. The uncle describes standing paralysed at the grave site. He describes in vivid detail the pain and grief experienced by his sister and his great sadness in watching on. But also the determination to hold on to the memories of his niece.
2. The statements from the Haggerty's give a different perspective from outside the immediate family. Again there is just a real sadness arising from this loss. A young girl, the author of one of those statements, so deeply missing D'Arne but vowing to keep her alive in her mind and heart. Her younger sister deeply affected. The girls' mother Despina dealing with the loss experienced by and the impacts upon her own two children whilst grappling with her own grief and loss. A husband who is so supportive of all of them but who is too sad to even speak of the event. So deep and lasting impacts that have been felt in the whole family unit but which have manifested in differing ways. All of them missing D'Arne and cherishing their memories of her.
3. No doubt so many of these sentiments would be shared by the many who join this hearing by way of the WebEx today, people, who but for the pandemic might have filed their own impact statements or been present at court. They joined the hearing because in one way or another they knew D'Arne. As I said earlier, before commencing these reasons, there are family friends, relatives, colleagues, squad mates. They would all have had a connection to D'Arne. They would all have a first and for that matter, a last meeting. They would all have stories about her memories of her, and I am sure grief and a sense of loss at her death.
4. How do you put into words the impact of a loss such as this? Those who wrote the impact statements did a mighty job. The reading of these victim impact statements occurred in open court. It was for me, and I am equally sure for you, impossible not to be moved by the raw emotion in this sort of material. It is why this offence is as serious as it is, involving not just an act of dangerous driving which is serious enough, but dangerous driving causing the death of another human.
5. D'Arne De Leo's life has been tragically cut short and it was totally avoidable. Of course you did not set out to bring about such an act. If only you had stopped your truck as you plainly should have when you knew that the brakes were not functioning appropriately. But you did not and she is now dead.
6. The impact of a crime is one of a large number of matters that I must have regard to as the sentencing judge. There are many other matters I must have regard to including of course the various matters in mitigation that have been placed before me. I guard against the impact of your crime from swamping my consideration of other sentencing factors. But I do take into account the impact of your crime as I am required to. It has been quite immense.

1. Your counsel, Ms Wallace conducted an excellent and thorough plea on your behalf. She had prepared detailed written submissions dated 15 May of this year. They were marked as Exhibit 1. They were not an outline but rather followed the practice direction to prepare complete submissions in this uncertain COVID-19 period that we are living through. Those submissions took me to your background in some detail. She went to a variety of mental health materials that had been assembled including the Forensicare report which I had called for. They demonstrated some serious supervening mental health issues. She took me to a bundle of text messages you had sent as well as to the expert report of Enka Tech engineering to be read in conjunction with the export report of Mr Smith in the notice of additional evidence which I have already referred to. She made submissions as to the offence as well as to the relevant purposes of sentencing and she took me to some other cases including examples of sentences passed by other judges. Yesterday she filed some supplementary submissions running to five pages. I think she wanted to ensure that I did not sentence you as though you had committed the offence of culpable driving with either recklessness or gross negligence alleged. Whether that concern arose out of dialogue in the course of the plea or not, I am not able to say. Though it was not necessary to file these supplementary submissions, I take them into account as well and they will be marked as part of Exhibit 1.
2. She relied upon;
   • The guilty plea;
   • The presence of remorse;
   • The absence of any relevant criminal history and impliedly your favourable rehabilitative prospects subject to ongoing mental health treatment;
   • She relied upon what is referred to us by us lawyers as extra curial punishment being the serious supervening mental health issues that have emerged;
   • She relied upon the application of limbs 2, 5 and 6 from the Court of Appeal decision of Verdins v R [2007] VSCA 102 ("Verdins").
   • Also, the risk of deportation was raised but in a very modest way which I will return to later in my reasons;
   • She relied upon the hardship in custody, quite independent of the case of Verdins, arising in the setting of the COVID-19 virus and the ramifications of that virus for prisoners in this State. Again though that was raised as having really only quite modest impact here.
3. Ms Wallace submitted that it was open to structure a sentence such that a community corrections order might be engaged with your immediate release onto such an order. Either that or a secure treatment order under s.94B of the Sentencing Act 1991. Alternatively a prison term, either a straight sentence or failing that, one with a non-parole period.

1. The prosecutor Ms Harper had placed before the court her own detailed written sentencing submissions which were marked as part of Exhibit A. The Crown accepted that there was some remorse and that there was some utility in the plea despite it being quite late in the piece. The prosecution accepted the application of the fifth and sixth limbs of Verdins. I believe they were silent as to the second limb. The prosecution accepted the low risk of re-offence and a low weighting required for specific deterrence as well as the minimal need for community protection in this case. They raised in their submissions the aspect of risk of deportation.
2. Ms Harper expressed her concern that the plea seemed to have focused on the last kilometre of the journey, with the implication that this was the only time when you had noticed an issue with your brakes, that is, after it was too late. The prosecution said that was not the basis of the dangerous driving causing death and that it encompassed the entirety of the journey from the time you left the soap factory and with knowledge that your brakes were not working appropriately, with multiple occasions to pull over. Ms Wallace clarified that this was not what she had been submitting and accepted the prosecution contention. The prosecutor took me to some of the sentencing principles and the assessment of your moral culpability which they said fell in the mid to high range. This was not after all, they said, a momentary inattention case. You should have stopped the truck and had opportunity to do so. Despite the various mitigatory matters that existed here, the prosecution called for a term of imprisonment and challenged the availability of a community corrections order. They too referred me to cases, one a sentence in this court, one a

Court of Appeal decision of Stephens v The Queen [2016] VSCA 121 ("Stephens") dealing with matters of principle in this sort of case.

1. I turn now to your background. Your background and family history was set out in the written submissions as well as in the Forensicare report and some of the other mental health experts reports and notes. It is not seriously in dispute so I see no need to set it all out in my reasons. I accept the family and personal background placed before me and it in no way explains the offence or reduces your culpability in any way. Just a brief thumbnail sketch will suffice: you are 30 years of age, born 13 March 1990. You were born in India of Sikh heritage and came to Australia in 2009 to study. Your parents remain in India. You have an older brother who lives in Sydney and as I told you earlier he is watching this hearing. You originally started doing a course as an automotive engineer but moved instead after a short time to a course as a chef. Prior to working as a truck driver you had worked as a chef for a number of years, predominately at a nursery cafe. You had been in a long-term relationship from 2009 until sometime after this offending, it is not clear when. You had been engaged and were going to try to start a family and hence you were looking for work at more family friendly hours than exist in the hospitality industry, hence your fateful decision to obtain your heavy vehicle licence in September 2016. It follows then that you were not an experienced driver of large trucks at all. There is nothing at all in your history suggesting that you misbehave on the roads.
2. The relationship with your fiancé broke down at some point after you had plunged into a serious mental health decline following this incident in

January 2017. The expert materials assembled document some of the issues you have had in the period since you killed Ms De Leo. You have been wracked with guilt, and have tattooed some of her details onto your body, in part to remind you of what you have done to another human.

3. You were admitted to bail on 23 January 2017 and the chronology is set out in the opening. The first trial listing was adjourned to get some reports. You were ultimately judged to be fit to plead. At the second trial listing, the case was not reached and the trial was then listed a third time on 16 March of this year. An offer to plead guilty to this charge was made on the Friday before, being the 13 March. There had been a charge of culpable driving on the trial indictment with both recklessness and gross negligence alleged as particulars. You had by then been taken into custody in January of this year as you failed to appear. You are housed at the Erskine Unit at Ravenhall Prison. That is a psychiatric inpatient unit within the prison. It is plain from Dr Best's report that you are not travelling well in custody. That is undoubtedly an understatement. You are not in lockdown but choose, for whatever reason, to self-isolate. Though visiting has been suspended, you had not received visitors prior to that suspension so the impact upon you of the COVID-19 virus has only been quite modest.
4. You have one prior criminal appearance of no relevance to my task at all.
5. You have been in custody now for over 145 days. I take into account your background as far as I am able to.
6. I turn then to some of the other matters that have been raised in mitigation on your behalf.

1. Firstly, I turn to your guilty plea. You have pleaded guilty. You ran a contested committal as was your right. You were committed to this court on the charge of culpable driving. You were going to trial which again was your right and were denying knowledge of the existence of any ineffective brake operation. In other words, it really was being suggested that this was an unavoidable catastrophic failure of which you had no notice. The charge which you have pleaded guilty to is an alternative. It is plainly not the earliest of pleas but I do not wish to get too caught up on that. What is far more important is that you have pleaded guilty. Though I can understand easily why the uncle of the deceased speaks in his impact statement of your drawing out of the proceedings and of obfuscation and delay, he of course is not armed with the medical material which I have seen. I do not believe that is what has happened at all. It certainly will have felt like that to him and probably to other family members but there was a lot more going on behind the scenes. As I have said, there was the more serious charge. Also, you have been labouring under the sizeable enough mental health issues that are described, for a lengthy period and that would have made getting any sensible instructions from you a pretty challenging business. There were at times some live and serious questions as to your fitness to plead. The elements of the charge of culpable driving and dangerous driving causing death are not that easy to understand at the best of times. It is difficult enough to explain the elements even to a jury and to differentiate between the charges and you have had serious mental health issues. You would also have had a justifiable sense that your employer was to a degree also at fault for not giving you a properly maintained truck. Now the matter settled on the eve of the trial in March of this year. Your guilty plea is still of real value and as became apparent over that weekend, an announcement had been made, late on the Saturday, that no new jury trials would get under way owing to the COVID-19 concerns. It is true that the plea offer was made prior to that announcement but in a setting where there were questions in most of our minds including your counsel's as to how long we really could continue empanelling juries. By Monday it was clear that no new juries would or could be empanelled and that is still the position now in late May. You were arraigned and pleaded guilty to this charge in that setting.
2. Your guilty plea is important. It removes the need for any trial and that trial probably would not have got under way until the final quarter of this year had the case not settled in the way that it did. In fact, there is even some real chance that the trial would have gone off to a date sometime next year. I am on notice from the victim impact statements as to the emotional cost of having the matter held in suspense. So your plea must be adequately recognised. You have admitted your guilt and that brings some finality to this case, a case which is stressful for family members and friends of Ms De Leo. Finality is I am sure important for them and for you. You have taken responsibility for your crime and in a setting where there was an arguable defence. Mind you, as I said in the course of the plea, I think it was a very sensible resolution for all concerned. By way of verdict, well I suppose you might have fared better or worse or done the same. The nature of that verdict would have very much depended on a jury being satisfied that you had some appreciation before the collision that the brakes were not functioning correctly. There was of course evidence on that score. We will never know what a jury would have made of the case as you did not chance your arm. Some do. You did not. Instead you have admitted your knowledge. You have admitted your guilt of this lesser offence. You have in that way facilitated the course of justice and I must reward you for that. That is the law. The community has been saved the time, cost and effort associated with an actual trial in this court. All witnesses have been spared the experience of giving evidence at trial before a jury. The victim's family have at least been spared the emotional roller coaster of a trial though I am sure they will have felt like they have been riding that roller coaster for some years now given the chronology of listing I have described. I take into account your guilty plea, it is important. As a matter of law there must be a sizeable discount in sentence.

1. I turn to the issue of remorse. I have read all the reports and the mental health materials including the recent Forensicare report. I am not going to quote slabs from any of those reports at this point in my reasons or later. You were distressed at the scene, no question about that, and you have deteriorated ever since and have really been plunged into the supervening mental health crisis' which are spoken of in the reports: depression, anxiety, distress, post-traumatic stress disorder. You know that another person has died and that has always deeply affected you. Of that there can be no doubt. When speaking of remorse, it ordinarily relates to a feeling of remorse or contrition for the commission of the crime and of course you were taking issue with any criminality. But that is easy to understand. It is a far more complex setting to accept responsibility in this case than where for instance there is an intended physical act with an intended outcome, such as an assault. Concepts of recklessness and gross negligence relating to culpable driving are none too easy to understand and dangerousness in relation to the lesser offence is also quite a complicated legal concept. In this case, initially, you would have had no real idea what had caused the brake failure. You could not have. Once you learnt, you may have had a sense of your employer being somehow at fault and that may have impeded your having a clear assessment of your own failing. But all along you were deeply affected by having what you knew to be a lead role in the death of another person. Now it is true that you were to a degree pointing the finger at your employer and denying any role in the loading of the tray but having a grievance as to your employer's failure would be a pretty understandable thing in the setting of this case. At trial you were denying or would be denying any knowledge of any brake failure until it was too late to pull over and were challenging any admission made by you at the scene as too having prior knowledge. But I am very confident, as confident as I can be that all along you have felt a deep regret for the death of Ms De Leo. I have no doubt that you feel a sense of remorse. It was and is genuine and you have now backed it up with a guilty plea to an appropriate charge. This will sound strange to say in a case involving such a tragedy as this one does, but you ruminate upon this tragedy probably too much for your own good. By that I mean you have tattooed those details of Ms De Leo onto your own body and they are a constant reminder of your part in the death of another. Dr Best worries about the effect of that on your mindset going forward and I am not at all surprised.
2. Ultimately, I have no doubt you are deeply sorry that another person has died and by virtue of what you acknowledge to be your criminal act. I take your remorse into account in mitigation.

1. I turn now briefly to the submissions as to the impact of the COVID-19 global pandemic upon the experience of a prisoner in this State. The Court of Appeal first dealt with the issues in a decision of Brown [2020] VSCA 60 in late March of this year. They I think correctly counselled judges against speculation. There have been many decisions since in the Supreme Court and the Court of Appeal. Amongst them the cases of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138. Re Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76, Nicholls [2020] VSC 189, Re Diab [2020] VSC 196, Wyka [2020] VSCA 104 and Thomas [2020] VSC 206.
2. It is still far too early to know how this is all actually going to play out either in the community or in the prisons. It is a rapidly evolving setting changing really almost from week to week. If I may say so, it is looking far less gloomy than it was looking a month or two ago when the Court of Appeal first spoke of these matters.
3. It seems likely to me that that there will be some continuing lockdowns to some extent and that is because they are already to a degree in place and because social distancing is the key to avoiding the spread of this virus. Outside prison, we have already had some relaxation of the stay at home directions. Those alterations came into effect I think about a fortnight ago. We are still though being told that social distancing is critical. More relaxations have been foreshadowed. Whatever steps are taken in the future in the community to further relax some of the remaining emergency measures, it seems very clear that the need for social distancing will continue deep into the year. I do not see how that will not be the same in a prison setting.
4. I am not allowed to speculate but I believe that the virus itself, or concern about the virus by those who run the prisons, will be likely to limit social interaction, and to limit work opportunities and even access to courses, education and programs in prison. I know that visits have already been suspended and there will undoubtedly be increased stresses.
5. Your counsel conceded that there was only a modest increase of your actual burden owing to the way you isolate even when not compelled to and the fact of the suspension of visits having no effect as you had received none prior to that point. Nonetheless, I accept that there is an increased stress for prisoners and I accept your counsel's submissions as to there being an increased burden here. I take it into account in your favour.

1. I also had the submission based on the Court of Appeal decision of Verdins, a case dealing with the impact upon the sentencing process of mental health conditions existing either at the time of offence or at the time of sentence or both_._ Ms Wallace was submitting that the second, fifth and sixth limbs from that case applied here. She was explicit in disavowing any reliance on the third limb which had been mentioned in her written submissions. To avoid any doubt though, I took her to that written submission and she told me that she had abandoned it.
2. It is not suggested for one moment that you were labouring under any mental health issues at the time of the offence or which had any realistic connection to the offending so there is certainly no Verdins based reduction in your culpability (Limb 1). However, there is then the supervening mental health issues that mostly seem to have been triggered by your involvement in this crime and which it is said will increase your custodial burden as well as having a bearing upon the nature of the disposition appropriate in the case. I am not going to conduct an audit of the various mental health materials. They are very lengthy. There is no use in my doing that. I have read all this material again carefully. It is plain from those materials including Dr Best's recent report that you are not travelling well in custody. Nor have you been faring well for many years out of custody. Your counsel in her written submissions worked her way through the various presentations and diagnosis which have been made. I will not. You have complex mental health needs. You have been treated on a voluntary and involuntary basis by a variety of mental health services. There have been many hospital admissions. You have developed some psychological conditions which seem to be a response to this offending. You have had CAT teams, acute admissions, even electroconvulsive therapy. You have been diagnosed variously as suffering from a major depressive episode, acute stress reaction, post-traumatic disorder, traits consistent with a cluster B personality and self-harming behaviours. In fact, you have been suicidal in the past with multiple hanging attempts and overdoses and there has been a sense of hopelessness which has pervaded your life. You have plainly been deeply affected by the events of 12 January 2017. This is not just window dressing. This has been the life you have been leading since then. You are on a variety of prescribed drugs and as I have said, you are in the psychiatric unit at Ravenhall with a major depressive episode with melancholic features. You have pervasive feelings of guilt and thoughts of death. I do not doubt that these various matters increase your burden in custody and place you at risk of further deterioration. The evidence goes in only one direction. The fifth and sixth limbs are plainly engaged. So too the second limb of that case, though here I have just no option but to imprison you. It follows then, that I make the allowances pursuant to the case of Verdins in the way that your counsel suggests that I should.
3. There is also the ability to take your supervening mental health issues into account as a form of extra curial punishment in their own right and I do. So I accept paragraph 46 of the written submissions can be given some weight in this case.
4. It is hard to know what to make of the suggestion of your having some traits consistent with a cluster B personality disorder. It is far from being a diagnosis. You have some traits of that disorder and I do not believe I could take that into account even if the case of O'Neil, a Court of Appeal decision, had been overturned, and that is owing to the fact that the evidence on that condition is just inherently vague. I was told by your counsel about a pending Court of Appeal decision of Brown where a Bench of five are considering the earlier decision of O'Neil. It has not been published yet. Maybe there will be some alteration to the law in this area, maybe there will not be, I cannot know, but until there is, I believe that I cannot take into account a personality disorder in a Verdins fashion but can in an O'Neill[1] fashion. Here though there is simply no evidence satisfying me on the balance of probabilities that you even have that disorder so the state of the law is actually pretty academic.

1. I turn to your prospects of rehabilitation. What are your prospects of rehabilitation? Well, no adjective was employed by your counsel to describe them from my memory of the plea. Why am I in any way guarded at all? Not because I think you are going to take to a life of crime, you clearly are not, but mainly owing to your disturbed state. You have not been functioning well for over three years and that is despite much treatment and medication.
2. You have no relevant criminal history. The offence is not one which you set out to commit or foresaw and you have been paying a pretty high cost ever since though nothing like the cost of the family of Ms De Leo. You have pleaded guilty and you are remorseful. Of course they are positives. No doubt the time you have served already and the sentence I will soon impose would serve to deter you into the future. The only reason I am in any way guarded as to your future prospects is owing to the mental health predicament and those issues which have been sizeable for years now. Should you be able to be treated successfully and I hope that you can, then I would think you have excellent prospects of rehabilitation and a low risk of offending again, much less in this way ever again. Those favourable prospects will likely take shape back in your homeland.
3. The community has never needed protection from you and that purpose and specific deterrence, that is the need to deter you, must drop away very significantly in this sentencing exercise.

1. I turn then to the issue of deportation. You are on a bridging visa. A sentence of 12 months or more will bring into play the automatic cancellation provisions in the Commonwealth Migration Act 1958. I will work then on the theory that you will have your visa cancelled if sentenced to 12 months or more imprisonment.
2. A sentence above that ceiling is simply inevitable here.
3. You would have rights under the Migration Act to request a review of any such determination and then further rights to review that decision if necessary, in a tribunal or court or perhaps even both. Where would that all end up if you took such action? I have no idea. It would involve pure speculation on my part. The fact is though that here, I am told that you wish to return home to India. The sooner the better. You wish to be deported. It is no doubt for that reason that Ms Wallace's written submissions were silent on the issue of deportation and its mitigatory effect. Really, the only way she was relying upon it was in the sense that there may be some hiatus in your deportation given the current uncertain state of affairs with international travel with those things being on hold and hence you may be placed into immigration detention. So she was not relying upon any sizeable increase in your prison burden or the loss of expectation of permanently settling in this country. You look forward to returning home. So cancellation of your visa will not be a devastating thing and nor would deportation be. In fact, you would welcome it. There will just be a question in your mind as to when you will be deported and whether there will be a hiatus with movement into immigration detention prior to that event. So some aspect of uncertainty which I do take into account but it is a very modest matter. Deportation at the moment may well be problematic. But the point in time when you may be eligible for deportation is a distant enough event and hopefully at a point when we are back living a far more normal life with international travel firmly back in place and no reason for any hiatus.

1. I turn now to consider the offence of dangerous driving causing death. It involves the death of another person and so of course it is a serious offence.
2. The case law in this area makes it clear that dangerous driving causing death can encompass a very wide range of conduct. There is always a tragic consequence and almost always dire impact upon those who have lost a loved one, but there can in fact be sizeable differences in the moral culpability of an offender from case to case. Prison terms are most often employed though nothing is set in stone. Some offenders have avoided a prison term but typically, for offences that are said to be of low moral culpability. The appropriate sentence will always depend on the individual circumstances of the individual case.
3. Each instance of the offence will necessarily involve a serious breach of the proper management or control of a vehicle so as to be in reality, and not just speculatively, dangerous to others. That is to say, a serious breach creating a real risk of death or serious injury. It is not dependent on what the driver thought of their driving or what the driver may or may not have foreseen. The driving must have a feature which subjects other road users to some risk over and above the risks ordinarily associated with road use. You have admitted the offence but the court still needs to engage in an assessment of the dangerousness in this case and that will be informed by the extent of the risk which the driving created as well as the potential harm should the risk eventuate. True it is there are many features of aggravation that are absent in this case. Many matters of aggravation are spoken of in some of the cases for instance the New South Wales case of R v Whyte [2002] NSWCCA 343; [2002] 55 NSWLR 252 which has been approved in this State. But as Victorian decisions of Stephens and DPP v Weybury [2018] VSCA 120 made clear, moral culpability is not to be assessed by listing aggravating features that could have been present but were not, and then asserting that the instant case cannot therefore be regarded as serious or very serious because of the absence of some of these factors. Nor, for that matter, did your counsel approach the plea in that way. The dangerousness and your moral culpability fall to be assessed by reference to all of the conduct and the circumstances of the specific case including the circumstances of the offender. Offending by someone with knowledge of the risks associated with the driving would ordinarily be adjudged more blameworthy than by someone without knowledge. The degree to which particular consequences of the acts were or should have been foreseen will also inform this question of moral culpability. See the Court of Appeal decision of Stephens.
4. As I have said there are matters of aggravation absent here. No excessive speed or alcohol or drugs or erratic driving or showing off. You were not escaping from police or driving when sleep deprived. Now many of these features will be common in the more serious offence of culpable driving causing death but they can also be present often enough with this offence that I am dealing with. The absence of those features does not remove the serious features of this case. You were an inexperienced driver. You could have had no real understanding of what particular fault was in play inside the braking system or as to the impact of the load distribution. But you well knew that you were driving a truck which had inadequate brakes. You had driven a number of kilometres along the Mountain Highway and were obviously seeking to tease out some braking capacity in that journey. You knew you were driving a sizeable truck with a 13 tonne load. You knew the brakes were not working effectively. Objectively viewed the consequences of any inability to stop would of course be dire. Your counsel conceded that to do so with a large vehicle was especially dangerous. I am not dealing with you for the more serious offence of culpable driving based on recklessness or gross negligence. You are not to be fixed with an awareness of the substantial risk of death or really serious injury and then making a conscious decision to unjustifiably disregard that risk. I am dealing with you for dangerous driving causing death. This is certainly not a low level example of the offence. In fact your counsel was not suggesting it fell at the lowest or even at a low level. The Crown submitted that your culpability fell at the mid to high end. I believe it is not in the highest category but it is well removed from a low level example and falls somewhere in the middle of the range.
5. It is by the way not mitigatory that your employer did not maintain the truck. It is not mitigatory that he has not been charged. There is reference to some of these matters in the supplementary submissions. I wish he had maintained the truck and then none of us would be here, but we are. It is easy to see why you might have a grievance in relation to your employer. It might have been an aggravating feature if for instance you had been the person maintaining the truck and one who had taken some shortcuts or practised some dangerous economies to save a dollar here or there and had a better understanding of the faults in play or your limitations as a mechanic. But that is not the setting I am dealing with. You were the driver of a large truck. You knew that the brakes were not working effectively and you failed to stop. You continued to drive and should not have. Driving such a vehicle without properly functioning brakes is, as your counsel concedes, especially dangerous when viewed objectively. I place this example then of the offence in the mid-range of offences coming before the court. This sort of language where lawyers and judges endeavour to categorise an offence can be so easily misunderstood.
6. No-one is saying that the consequences of this offence are anything other than disastrous. A sentencing judge is required though to make a judgement as to the nature and gravity of the offence before the court. As I have mentioned, there can be sizeable differences in moral culpability and criminality. Sometimes we use a shorthand descriptor, high or low or medium. That approach has often enough been disapproved as it was in the case of Weybury. But sometimes we seek to place the offence on some spectrum of offence seriousness. But either way, our language can be so easily misunderstood. After all, there is no such thing as an example of dangerous driving causing death that is not a serious criminal offence. It is an inherently serious offence. But some offences are more serious than others, even though they all have one sad common denominator, being a tragic death.
7. Some of the cases deal with motorists who are behaving like maniacs on the road. Drugged and drunk drivers, high speed, deliberate or foolish manoeuvres, sometimes all of these rolled in to one act of driving. You name it, we as judges sitting in these courts have seen it all. But a large enough number of dangerous driving causing death cases are very different indeed, with much lower levels of culpability. Some examples, quite a lot actually, are committed by decent law abiding men or women, motorists who have had a period of inattention, sometimes only for a few moments, and so a car or truck runs through a red light or through a stop sign or give way sign and there is a catastrophe. There is often enough no speed or alcohol or drugs. There is often enough no prior criminal history at all, deep remorse, a blameless past life with excellent rehabilitative prospects. It is why they are such hard cases.
8. Decent people committing serious crimes with such tragic outcomes, makes for a difficult sentencing exercise.
9. The fact is though no one who commits the offence of dangerous driving causing death ever sets out to kill or injure anyone. No one is to be sentenced as having a reckless state of mind. As I have said the offence is founded on the existence of a serious breach of the proper management or control of a vehicle creating the real risk of death or serious injury.
10. Here your breach was indeed serious. A driver in one of the 'loss of attention' cases is engaged in a different style of breach. The failure to maintain a proper lookout or concentration to their task. That involves an inattention not a decision. Your breach involved a decision not to stop the truck upon becoming aware that there were improperly functioning brakes. That was a serious breach indeed, when regard is had, as it must be, to the potential consequences given the size and weight of the vehicle. Your inexperience is I suppose a double edged sword. On the one hand, being inexperienced and driving such a large truck with defective brakes was a further reason to stop. A further reason for caution. As against that though, you were an inexperienced truck driver and perhaps that inexperience stopped you from recognising all of the dangers and doing what you should have done and that is to stop when you detected the fault. As I said earlier, you no doubt hoped to finish the job and then report the issue. You had reported issues in the past. I am entirely confident you did not run through in your mind this particular scenario of travelling down a hill with this disastrous outcome. I am confident you did not run through in your mind any tragic scenario and then weigh it all up and unjustifiably disregard such risks as occurred to you. That is not what you did and that is not what you fall to be sentenced for. You admit by your plea that yours was a serious breach of the proper management or control of a vehicle which in the circumstances created a real risk that members of the public in the vicinity would be killed or seriously injured. That is not something you needed to foresee. That is the undisputed fact in terms of this driving.
11. Brakes are after all a critical part of any vehicle and when dealing with any collision where a 20 tonne truck is involved, tragedy is never far from the picture.

1. I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. As I have said I view them very favourably. The only issue for you is getting on top of your mental health demons.
2. I am required to punish you for your crimes and must do that justly and proportionately. Well, punishment is important. So too is denunciation. I must denounce your conduct. Your conduct resulted in the death of a fellow citizen. It is conduct that just cannot be mended.
3. I must pay appropriate weight to specific deterrence. That is the need to deter you or dissuade you from offending into the future. I believe that purpose as well as community protection drops away, if not completely, then almost completely in this exercise. Some people come before the courts with shocking driving histories, a total disregard for other members of the public and a strong and proven disobedience to past court orders. People such as that may have minimal prospects of rehabilitation and a very high risk of re-offending. It stands to reason that they need to be strongly deterred and the community needs to actually be protected from them. Those purposes are very much operative in that sort of case. Then there are people like you. You were and are actually a decent man but one who has made a dreadful decision on one day of your life. One which the victim's family will always live with. But also one which you will regret for the rest of your days. You have no relevant criminal history at all. You do not need to be greatly deterred. You have been deterred already to a very large degree I would be confident of that. You have been plunged into a mental health crisis arising from this act occurring back in January 2017 and your reaction to it. That is, your reaction to being involved in the death of another. You do not need to be greatly deterred and the community does not need protection from you and never has.
4. General deterrence though is a very different matter. It is of real importance in my sentencing task. It is important that this court send a clear message to others in the community. To other road users. The roads are dangerous enough places at the best of times with people doing their level best to drive appropriately. Drivers must understand that significant punishment awaits those who by their dangerous driving cause the death of another on our roads. It is an offence, which after all, involves a very serious breach of what we expect from responsible drivers and ends always with tragic consequences. So other motorists must be deterred.
5. I must have regard to the maximum penalty and the impact of your crime. It is a 10 year maximum term and the impact has been large as you well know.
6. I also have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the relevant SACSTAT data, held by the Sentencing Advisory Council for cases dealt with between 2013 and June 2018. However they are just figures and with many of them predating the

Court of Appeal pronouncements in Stephens, which requires an uplift in sentences for mid and higher level offences. That decision applies to my task. Now of course not every person was imprisoned in that period. But those statistics disclose that the most common prison sentence when prison was selected fell at between two and three years with a sizeable portion falling in the bracket of three to four years.

7. I have been taken to a variety of cases by your counsel and to one or two by the prosecutor. The actual outcome in other cases is far less important than matters of principle set out in them. Being taken to comparable cases has limited but at least some utility. What assistance is there being taken to non-comparable cases? Virtually none in my view.
8. I was taken to the decision of Pan v The Queen [2020] VSCA 42. There the Court of Appeal made it plain that the poorly designed road was a serious accident waiting to happen. The road user there was unfamiliar with that very badly designed road. There is no relationship between that case and yours. You were driving a truck and you were fixed with some knowledge that the brakes were not working appropriately.
   1. I have read all cases I have been referred to. None are truly comparable and that really is frankly conceded by your counsel. There are differing acts, differing omissions and none that are in the same class as yours. A momentary loss of attention by a bus driver in Calf [2020] VCC 353 or by the elderly driver in the recent case of Nicholson [2020] VCC 436, they cannot be measured up against your decision not to stop and to drive a large truck without adequate or fully operative brakes.
   2. As is usually the position, I am really being asked to compare apples with oranges. They are not comparable and nor are these cases. Nor frankly do I think there is much use in even being taken to a selection of sentences imposed by single judges of this court. None of the sentences in those other cases were the only sentences that could have been imposed. Another judge could permissibly have imposed a very different sentence and not been in anyway wrong. That is because there is no such thing as one correct sentence.
   3. At the end of the day, I am exercising my sentencing discretion. I am sentencing you for your crimes. That is not a mathematical task. No amount of looking at other cases or statistics will provide the answer to me. Other cases are not precedents. Statistics have inherent limitations. I am not sitting up here as a statistician and sentencing based on what the most common sentence has been in the past. What I am charged with doing as a judge in this court is to exercise an individual sentencing discretion in your case.
   4. Prison is always a disposition of last resort. I took your counsel really to be conceding the inevitability of a prison sentence but arguing that one in combination with a community corrections order would suffice. You had after all been in custody for close to 150 days. She was plainly arguing for your immediate release onto a community corrections order. Provisionally, it did not strike me as being a realistic submission and I said as much I think at the time. My view remains unchanged. Your offending is way too serious for such an outcome as that. If I believed that a community corrections order either on its own or in combination with a prison term could achieve all the purposes of sentencing, well I would place you on such an order. That is because I cannot as matter of law impose a more serious disposition than is needed to achieve the various purposes of sentencing. But such a disposition is plainly not open in this case. It would give totally inadequate weight to punishment, denunciation and general deterrence. Quite aside from that, it is as plain as day that your sentence must fall above the one year period and that itself would lead to the automatic cancellation of your visa.
   5. In addition, a community corrections order is not open as you will also need to be in a position to enter it within 12 months of today's date and that is also just impossible to achieve. It is plain to me that weighing up all the matters placed before me in the excellent and thoroughly prepared plea conducted by your counsel, that a sentence in excess of two years is required and in such a setting as that, I am required as a matter of law to fix a non-parole period.

1. It follows from what I have said that I do not believe that a court secure treatment order under s.94B of the Sentencing Act 1991 is appropriate to consider here. I have not called for a report as it seems apparent to me that you would be highly unlikely to satisfy any of the major criteria. You have some mental health issues, you have some impaired functioning which no doubt would be better treated in a community setting but that is not what a secure treatment order involves at all. A court imposes such an order to run for a certain duration, which would equate with the term of imprisonment which otherwise would be selected. The court then must fix a non-parole period. Under such an order, you are not released out into the community you are compulsorily taken to and detained and treated at a secure mental health facility, if a place exists in one. If at any time, you are discharged as a security patient under section 274 of the Mental Health Act 2014, the court secure treatment order operates then as a term of imprisonment and you are then transferred to a prison unless and until released on parole. I do not believe your condition is of such a level as to merit consideration of such an order. The criteria involve the high bar broadly consistent with the criteria for involuntary admission or detention under the Mental Health Act and that seems to be inconsistent with much of the Forensicare material in Exhibit 3, read in conjunction with Dr Best's report, each which speak of treatment in the community or the advantages of such treatment. It is of course entirely inconsistent with the principal submission made by your counsel that I should release you into the community on a community corrections order. That submission though was founded on the treatment that is available to you in a community setting. So there is clear recognition in those materials of a less restrictive means of obtaining treatment. See s.94B(1)(c)(iv). I well recognise the increase in your burden presented by your mental health issues, I have made allowances for them, but they are being treated and you are being held presently in, at least relatively speaking, an appropriate setting, being the Erskine psychiatric unit at Ravenhall.
2. I will provide for the possibility of your early release by fixing a non-parole period. Now I cannot speculate as to whether you will be released on parole. I proceed, as I must, on the assumption that you will serve every day of the head sentence, as I am not allowed to take into account the possibility of your release on parole. Nor though can I decline to fix a non-parole period or alter or amend the duration of it by making some assumptions as to your likely deportation from this country. I have to put that issue aside altogether. So the Adult Parole Board will make the decision as to whether you can be released. Others will determine whether you will be deported. What I must do as the sentencing judge is to fix a non-parole period.

1. Stand up please.
2. Mr Singh, nothing I can do, no sentence I can lawfully impose, can do anything to restore the De Leo's family unit. No sentence will give them any great solace or comfort. My sentence is not to be taken as some measure of the worth of D'Arne De Leo's life. It just is not. A life is precious as you well know. No value can be placed on a life. A life is priceless and her life was. She is deeply missed and she cannot be replaced and no sentence will do so or is intended to do so.
3. What remains to be done though is for me to pass an appropriate sentence upon you for your crime, taking into account all of the relevant matters that have been placed before me. That is what I now proceed to do.
4. On Charge 1, the charge of dangerous driving causing the death of

D'Arne De Leo, you are convicted and sentenced to four years' imprisonment. That is the only sentence and so therefore that is the total effective sentence.

1. I fix a period of 28 months or two years and four months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention.

1. You have already served 151 days by way of pre-sentence detention, and that is to be entered into the records of the court.

1. There is a mandatory requirement to make an order against your licence and for a period of no less than 18 months. You are going to prison for a substantial period. Whenever you are released, you would need to try establish yourself back in the community. That of course will depend on whether you are even free to live in this country and at this stage of course you wish to be deported. However, assuming you were to stay in this country, a licence to drive would obviously be an asset. You are receiving sizeable punishment by virtue of the prison sentence I have just pronounced. However, given the circumstances of this case, I believe the licence order must have a tangible effect upon you, and the only way it can is if it is fixed by way of some future defined event. Otherwise, if I imposed the minimum licence order, you would serve the whole disqualification period whilst in prison and it would have no actual or practical impact upon you at all. So I model the form of my order on that form discussed in cases such as R v Tran [2002] VSCA 52 and R v Caldwell [2004] VSCA 40.
2. On the charge of dangerous driving causing death, I cancel all licences to drive held by you and I disqualify you from obtaining another permit or from driving in this State. That order will commence today. You are disqualified from obtaining another licence or any permit or from driving in this State, effective from today and ending 18 months after you are first released from custody, whether on parole or on the expiry of this sentence. What that means is that you will be disqualified from driving upon your release from prison for an 18-month period. Thereafter of course, to be able to drive, you would need to obtain a licence to do so.

1. I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence, I would have convicted and sentenced you to five and a half years' imprisonment. I would have fixed a non-parole period of three years and 10 months. That statement is to be entered into the records of the court.
2. Just have a seat there for a moment please, I will see if there are any other matters I need to attend to.
3. Are there any other matters that I need to deal with?
4. MS HARPER: No, Your Honour.
5. MS WALLACE: No, Your Honour.
6. HIS HONOUR: No. Now, look, he is obviously coming from custody, is there any need for me to make any sort of custody management direction at all or not?
7. MS WALLACE: No, Your Honour.
8. HIS HONOUR: No, all right, well thank you very much for your assistance. Now, you will be in a position to go down and see him downstairs, Ms Wallace, will you?
9. MS WALLACE: Yes, Your Honour, I've made arrangements to speak to

10. HIS HONOUR: All right. Well, Mr Singh, that completes the matter then and your counsel will come down and see you downstairs in a moment, all right? If Mr Singh can be removed, thank you.
11. MS HARPER: May it please the court.
12. MS WALLACE: As Your Honour pleases.
13. HIS HONOUR: Well, look, I think that completes the matter, then I will disconnect the WebEx link then at this stage.

[1] [2015] VSCA 325