DPP v Sutic [2016] VCC 1936

3 I still want to say something briefly about this offending. You drove a car very badly on the day in question. There is no question about that at all. You had illegal drugs in your system but it went much further than that, I am afraid. You exposed a number of motorists to great danger by your actions. It was daytime. Though it had been raining and the road was damp, it was not raining at the time and the road conditions were fair. Visibility was normal and the traffic was moderate. Other motorists were driving appropriately. The road you were travelling on had a number of sweeping curves, and sensibly it had double lines to prevent any overtaking.

4 You were travelling in an 80 kilometre per hour zone, and for whatever reason, as you were rounding a left bend, you chose to overtake a four-wheel drive which was pulling a horse trailer. That car was driven by Rebecca Rundle. It was a crazy manoeuvre as there were double lines signalling to any reasonable driver that you had to stay to the left of them. In addition there was a bend to the road and you were transacting the manoeuvre on the bend, so essentially blind to what lay ahead. You were not permitted to cross the double lines and for very good reason. They were not there by chance. They were there because of the great hazards and dangers of the very manoeuvre that you chose to undertake. As the road entered a curve you went entirely across the double lines. This was bad enough for Ms Rebecca Rundle who was pulling the horse float and travelling in the same direction as you were travelling. It was much worse for the occupant of the oncoming car. That was Ms Kylie Phillip-Collins. As she came around the bend she saw your vehicle, a HILUX, travelling straight towards her in her lane and at speed. She had very little time and almost nowhere to go, but unbelievably she was able to manoeuvre her car between your car and Ms Rundle's. That was because your car had moved even further across her lane. She looked in her mirror in shock and saw that a car trailing her had not been so fortunate, and that unfortunate motorist was a young woman named Kira Betchley. She was 23 years old.

5 Ms Betchley was travelling in her small Ford Laser. She was with her childhood friend, 20-year-old Agatha or 'AJ' Klawisz. Ms Betchley was in her own lane. She was driving entirely appropriately. Those two young women were heading out to go riding. She had some horses nearby. She was travelling in the same direction as Ms Phillip-Collins and though Ms Phillip-Collins miraculously squirted through the gap between vehicles, Ms Betchley simply had nowhere to go at all. She had no time to do anything. She had no chance of escape. Though Ms Rundle, who was towing the horse float, gave you the opportunity to pull back in behind her vehicle, I hasten to add pull in from a position you never should have even been in, you did not take the opportunity. You continued to drive, and at the last moment you made some move to the left, but it was too late.

6 You collided in an offset head-on collision with the desperately unlucky Ms Betchley and her passenger Ms Klawisz. Your vehicle essentially ran over the top of her front right corner. The meeting speed was something around 160 kilometres per hour, so it is not suggested that you were speeding. Your car then struck the horse float forcing the float and the car pulling the float off the road into a ditch. The float turned over. There was a horse named Bobbie within it. The Ford laser driven by Ms Betchley suffered severe damage and so too did the two occupants. Ms Klawisz tried to exit the car but found that she could not walk. Though seriously injured herself she was deeply worried about her friend Kira who was trapped in the mangled car. She initially thought her friend was dead but fortunately she was not. Kira Betchley regained consciousness in the vehicle only to tell her friend that she could not move or feel her legs.

7 This was an awful event. No-one who was involved in it will ever forget it. Except you. You have no memory of it. Ms Betchley was trapped and in a very bad way, and it took a long time to extricate her from the car or what remained of it and she was then airlifted to the Royal Melbourne Hospital with extensive injuries. Her passenger, Ms Klawisz, was rushed to the Alfred with massive internal bleeding from what transpired to be a badly lacerated liver.

8 I referred to Kira Betchley and Agatha Klawisz as desperately unlucky. Well, they were. This was a lottery on the road on this day. It was a matter purely of chance that these two young women were those to be seriously injured. It could have been anyone on the road that day who had the misfortune to be anywhere near you at that point on the road. Ms Rundle or Ms Phillip-Burns or all of them. Then again, I suppose looking at it from another direction, it was also a matter of pure chance that Ms Betchley and Ms Klawisz and others were not killed, so high was the risk of a catastrophic end given the actual driving engaged in by you. Your departure from the standard of care to be exercised by a reasonable driver was high, and that is so even though there is no course of conduct of bad driving alleged against you.

9 You were attended to at the scene, and as happens often enough, the person entirely at fault was not seriously injured. Your counsel in his written submissions says you were vague as to what happened. There was no alcohol in your system but blood tests showed that you had a variety of drugs including illegal drugs in your system. You admitted in the much later police interview, which was conducted the following year, to taking a number of pills and using cannabis the night before. You conceded that there may have been traces of the drugs but you had not really thought as to whether you may have been affected on the day. Anyway, the fact is you were cooperative and made admissions to the police.

10 The summary that is placed before me sets out the nature of the serious injuries sustained by the two young women and I do not see the need to descend to the full detail of those injuries. They are in the document, though I was told without objection of the likelihood of Ms Betchley requiring further surgery to deal with some of the hardware in her leg. The fact is, to qualify as serious injury, injuries have to be either life threatening or of a substantial and protracted nature. Well, that is conceded by the plea of course. Agatha Klawisz spent 30 hours in intensive care. She had a grade 5 hepatic liver laceration ( where grade 1 is the lowest and grade 6 is the highest, being a total avulsion of the liver). So this was a very serious liver injury indeed. She had massive internal bleeding together with a variety of less serious injuries. She spent a further three nights on the ward having been discharged from the Intensive Care Unit. Her friend, Ms Betchley, sustained high level injures of a substantial and protracted nature including a right pneumothorax, multiple serious fractures, multiple surgeries, internal fixation and long hospital stay with subsequent rehabilitation. She still has a long road ahead of her. The conduct endangering serious injury charges related to your conduct in exposing the driver of the horse float (Ms Rundle) and the oncoming motorist (Ms Phillip-Collins) to the danger of serious injury. The summary offence is self-explanatory.

11 So at one moment this was a quiet and pleasant Sunday afternoon with a number of the key players pursuing their interest with horses. The horse Bobbie in Ms Rundle's float. The two young women off to have an enjoyable afternoon riding and then to go on and visit some friends. Then in the next moment, chaos. Impact, pain, Injuries, panic, seriously injured women screaming in their vehicle, a horse being rescued from the float. Lives forever changed, including your own, and all because of your acts of negligent driving. So much then for my summary of the summary. The full summary will remain on the court file and has to be read in conjunction with the photographs that I have received in this case, photographs that depict the point where impact occurred and highlight the sheer folly of your driving.

13 There are victim impact statements from Ms Betchley, Ms Klawisz, Ms Rundle and Ms Phillip-Collins. Kira Betchley and Agatha Klawisz read aloud their impact statements and that reading was pre-recorded before another judge, Judge Hannan, on 22 September of this year. That in fact was the listing date of the plea, and you had been committed to that plea date in July of this year. Your legal team had made an adjournment application the day before, voicing concerns about the inability to conduct the plea owing to the absence of a report from a psychologist that you had been seeing. As the two young women would possibly be travelling on a later date, the sensible decision was taken to prerecord their reading of their impact statements. The plea was then adjourned to 29 November. As it transpired, on that later day, Ms Betchley, Ms Klawisz and Ms Rundle were all present in court together with some other member of their families. Ms Phillip-Collins was not present but her victim impact statement was tendered. Ms Rundle's statement was read aloud by the prosecutor and the pre-recorded reading of the other two victim impact statements of Ms Betchley and Ms Klawisz was played to me and marked as an exhibit alongside the actual statements themselves. There were some photographs exhibited as well.

14 I suppose it would be open to me to blandly state that I take into account the impact of your crimes and go no further. But I will not do that. You see, this hearing is not all about you. You fall to be sentenced for your crimes, crimes committed by you and crimes which have undoubtedly had serious consequences for totally innocent victims. These statements represent the one occasion for your victims to speak of the actual impacts of your crimes. I have some concern in endeavouring to describe the impact of your crimes given the brief coverage that is afforded to it in these reasons, as I might seem then to brush over the impact. I certainly do not mean to. It is nigh on impossible for me to distil the true impact into just a few sentences. It is impossible because that is not the nature of the suffering and the impact occasioned here as the very detailed impact statements make clear. I had read all the statements prior to coming onto the bench. Then, as I say, three were read aloud and I have read then all again since.

15 The impact statements made for sobering listening and reading. I am sure they did for you as well. You after all produced this effect, and I think you are a decent young man. You know that you are entirely to blame. You are in no way sitting down there in the dock revelling in your offending as some do. You would be sitting there hearing those words and knowing that this is all your fault, and I believe that they would weigh heavily upon you. You know that you have brought about these impacts on these four, with three of those victims of a broadly similar age to you.

16 The official road toll we hear spoken of often enough on a Monday morning after a bad weekend is a count, a count of those who have died on the road as these two young women so easily could have. It is a figure. It is a number. Well, the number does not really convey the impact. It does not alert us to the predicament of the families or loved ones or those left behind. As it concentrates on deaths it does not display any information about those who do not die but who are seriously injured or traumatised or both on the roads. Of course the carnage on our roads is not limited to deaths. Those figures are bad enough, but they are dwarfed by those whose lives are changed forever in an instant by serious injuries.

17 Well, Ms Betchley suffered severe injuries, and they continue to plague her and will for the foreseeable future. Virtually everything she had and did has altered, and it has altered because of your conduct. So financial, social, mental and physical impacts. Impacts across every domain of her life. Her body is not the same, nor her attitude to life. So much of who and what she was has changed and for the worse. A fit young woman who loved going to the gym, riding, running, socialising and working. Then in an instant, her life changed, and she was then experiencing levels of pain she had never imagined. She is left with significant and debilitating residual damage both physically and mentally. She will probably never be the same as she was, though one hopes that life will be good for her again as she continues to recover. She is reminded daily of your crimes by scars on her body in a variety of areas, but the memory would be vivid without the scars. And off course that is only her.

18 Ms Betchley's impact statement describes practical impacts upon others. Think of her family? Getting that call, attending at hospital, not being able to see their daughter for hours nor she them. The two young friends going to different hospitals. The fear they held for each other. This conduct of yours is like the proverbial stone pitched into a still pond with ripples expanding ever outward towards the bank. So many people in her life would be touched as she went through the medical procedures, surgery, the pain, the early stages of recovery, the baby steps of rehabilitation in hospital and at home. Parents exhausting holiday leave to minister to their daughter. A father spending nights at hospital. A daughter distraught at the level of pain and the sense of desolation and isolation she felt in the rehabilitation facility. There is no utility my plunging in more detail into her statement. That there has been a profound and significant impact is not in any way challenged. She was still having rehabilitation sessions two or three times per week as at the date of the impact statement being written. I have heard the statement read aloud by her. I have read it again myself since, and I take it into account.

19 This is not to downplay the seriousness of the injuries to her friend Ms Klawisz. Though seemingly not as severe, at least physically in a residual sense, they were very serious injuries. She was not kept in intensive care for fun. She had a massive internal bleed. Her liver had been lacerated very badly. She describes the residual pain and issues in a very matter of fact manner in her statement. The pain, dependence upon others and her journey back to independence. The impact at university where her final trimester was compromised to a degree by her absence. If it was only the physical pain, that would be at least something, but of course it is not. She says that was nothing compared to her mental pain and torment, replaying the accident in her mind, seeing her childhood friend motionless in the wreck, fearing that she was dead. The emotion of being brought back together upon her discharge. She speaks of anxiety, nightmares, panic attacks, a lack of appetite, concern about driving. She says her life has been changed forever. I do not doubt it. As to the other motorists placed at danger, well, Ms Rebecca Rundle, she is almost apologetic as to her victim impact statement.

20 Ms Rundle was also a 23-year-old, and she knows so clearly that she could have been in the shoes of Kira Betchley or Agatha Klawisz, and she commences her statement by saying her issues are small in comparison. Well, that is in comparison. Of course they are not small. It was a shocking experience for her. Now there was discussion in the course of the plea about her injuries. She was not seriously injured as the law defines that concept, still she has some issues which she describes in her statement. She has lost confidence on the road. She is anxious. Her horse Bobbie, who was in the horse float, survived but was a short time later diagnosed for and treated for cancer. Now I cannot have regard to any claimed possible link between the accident and that illness obviously enough. Ms Rundle has nightmares. There was financial damage with insurance not covering her losses. As she says "there are not many days that go by that I don't think about the day, I hear the girls screaming, I clearly see Bobbie's petrified face, I feel the uncertainty fear and anxiety I felt that day". She is thankful the event was not worse. Finally Ms Kylie Phillip-Collins. A short impact statement but right to the point. She suffers from post-traumatic stress disorder and has come a long way in the last six months. She was afraid for her life. She believed she would not see her children again such was the impending disaster as you drove towards her and she somehow - I do not think she knows how - miraculously squirted though the gap between Ms Rundle and your vehicle. She says that miraculously she was not hurt but she then witnessed the terrible events that followed, and she felt helpless, and has been plagued by nightmares hearing screams. She concludes "unfortunately something that does not take long to happen takes years to heal".

21 Your conduct will never be forgotten by any of those subjected to it. I take into the impact of your offending. Now it is not my job to be overwhelmed by this sort of material, and I am not. I am not here to respond emotionally to it, and impact is of course but one of a large number of matters that I must consider. But I am required to take into account the very significant impact of your crimes, and here there has been very significant impact.

22 I turn now then to the plea that was conducted before me. The plea got under way once your counsel provided the documents that really should have been filed two days in advance of the plea. There is a Practice Direction which regulates the conduct of pleas in this court, and this was yet another matter coming before this court where the Practice Direction was not complied with. It was regrettable that I was handed a very large bundle of documents only moments before coming on to the bench, and those documents did not even include the psychologist's report, which was the only reason why the matter had been adjourned in September of this year. When I ultimately got that report it was dated 3 October 2016. In any event, there was that hiccup at the start of the plea, but I mention it only to assure you that it amounts to nothing. It had nothing to do with you, and I entirely put it aside. Though I clearly should have had those documents, including the written outline and the report, what is important is that I ultimately got them and then had the opportunity to read them in the course of the plea as well as over the lunch adjournment and, for that matter, since.

23 Your counsel Mr Walmsley raised a number of matters in mitigation. He relied primarily upon:

• Your early guilty plea and cooperation with the police;

• Your excellent personal background as displayed in the very many references, as well as the evidence of your mother who was called on the plea;

24 The thrust was that when regard was had to your personal and work background and lack of any serious past offending that your offending was highly unlikely to be repeated and that you had very good if not excellent prospects of rehabilitation; a psychologist had been consulted and you were engaging in self-help and had been for quite some time;

25 Mr Walmsley conceded the seriousness of the injuries to Ms Betchley and to Ms Klawisz and made some submissions as to the relative seriousness of these instances of negligently causing serious injury. He took me to a couple of cases including the case of Harrison & Rigogiannis and argued that your offending did not involve the highest level of negligence on par with the level displayed in those cases he took me to. He argued that the negligently causing serious injury charges were low level examples of the offence;

26 He did not concede the inevitability of a term of imprisonment but argued that you could be sentenced to a community corrections order on its own.

27 Ms Dipietrantonio, who appeared on behalf of the Director of Public Prosecutions of this State, argued that such a disposition was not open given the serious nature of the offending. She took issue with your counsel's characterisation of the seriousness of the offending and argued that when regard was had to the high level of negligence and the extent and impact of the serious injuries to two people, not to mention the reckless conduct endangering serious injury charges, that an immediate term requiring the fixing of a non-parole period was the only available disposition. The prosecutor did not take issue with the mitigatory benefits of your guilty plea or presence of remorse, but as to youth, she took me to passages in the case to which I was referred which demonstrated that given the nature of this offending, those principles dealing with youth have less pull.

28 I remanded you in custody following the plea. It was readily apparent to me that a term of imprisonment was the only option. The question them for me to determine was the dimensions of the individual sentences, the extent of cumulation required and the manner of release mechanism which might be open to me. Guaranteed release on a community corrections order or the fixing of a non-parole period which of course represents no guarantee at all of release.

29 I turn then to consider the various submissions.

30 You have pleaded guilty and had done so at the earliest stage. That is a very significant mitigatory matter. You have taken early responsibility for your offending. Not everyone does that. I give you credit for your decision to plead guilty. Giving evidence can be a stressful experience for a witness. Witnesses, including the unfortunate young women in the Ford Laser and Ms Rundle and Ms Phillip-Collins, they have been spared the experience of coming to court to give evidence at a contested trial before a jury. The community has been saved the time, expense and the effort associated with the conduct of either a committal hearing in the Magistrates' Court and/or a trial in this court. In this way you have facilitated the course of justice. So I must reward you for your decision to plead guilty and at the early stage which you did. I must as a matter of law pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury. I also do pay regard to your level of co-operation with the authorities. You did make some admissions to the police when ultimately you were interviewed, and I take that into account in your favour as well.

31 I turn then to the issue of remorse. You have pleaded guilty and at the earliest stage. A guilty plea is usually evidence of at least some remorse. There are many expressions of actual remorse to be found in the materials placed before me by your counsel. For instance, in the report of the psychologist and the many references of friends, work colleagues and loved ones. Also in the evidence of your mother. I also know a fair bit about your background from these materials placed before me, and there is nothing in that background which would suggest to me that you would not be feeling remorse. You have a large body of supporters in court again today as you did the other day. It is clear that you come from a good and decent family. There is nothing placed before me which causes me to think that any of this material is window dressing or that you are down there sitting in the dock feeling purely pity for your own predicament. And of course you would be worried by your predicament, but who would not be? You are probably feeling that you have let yourself and your family down, and there is no suggestion that you are in any way revelling in the offending; of course you are not. The material before me goes in one direction; that is to your regret, sorrow, shame, remorse and contrition for the crimes that you have committed and for the impact of your conduct upon others. It cannot be too hard for you to understand the impacts as described. You are a person of broadly similar age, and you also have suffered a mishap in your own life in 2012 when there was a serious physical assault which has deeply affected you, so you would certainly be able to understand and empathise for the predicament of your victims, some of whom were seriously injured. So I am prepared to find that you are actually remorseful for your crimes as your counsel suggests I should, and of course I take that into account in mitigation.

32 I turn now to the issue of your youth, which assumed some prominence in the course of the plea. Well, you were only 21 when you committed these crimes. You have only recently turned 22. You are still very young. I do not lose sight of that fact at any stage. Your counsel emphasised your youth. Youth is ordinarily a very important factor in the sentencing exercise. It is pretty obvious at least to judges who sit up on the bench that young people are more likely to commit errors of judgment and more likely to be impulsive or rash. They do not always consider the consequences of their behaviour. They are not fully developed. Young people can lack insight and judgment and they are generally then less culpable as a result of these considerations. Importantly, because they are young, they can be more amenable to change and more capable of rehabilitation. The benchmark then for sending a young or youthful offender to prison is a high one indeed, and for good reason, but you have reached it handsomely, I am afraid.

33 Now it is true that rehabilitation generally has a strong added emphasis in the case of a young or youthful offender, especially one with no or limited criminal history such as you. It is usually more important than general deterrence. Rehabilitation of such a young person serves to protect the community. Prison can and does corrupt or damage rather than rehabilitate, and so of course when it can be avoided, it is obvious enough that it must be avoided. Prison is after all always a disposition of last resort for any court. So it is for these and very many other reasons that youth is ordinarily a very powerful factor indeed, and ordinarily then, less weight is attached to concepts of general deterrence and to punishment and a greater emphasis placed upon rehabilitation.

34 But these principles that are set out in many cases, including the cases of Mills and Azzopardi, they do not apply equally in every case where there is a young or youthful offender. Sometimes a young or youthful offender, even a young first offender must be sent to prison. The weight to be given to youth necessarily will vary from case to case. The more serious the crime, the more likely it is that greater prominence will be given to deterrence and to protection of the community and denunciation and punishment. The more prevalent the serious crime is amongst young people the less weight will be attached to youth and the greater weight to be focused on general deterrence that is deterring other offenders. As the level of seriousness of criminality increases, there is therefore generally speaking, a corresponding reduction in the mitigating effect of youth. Unhappily, negligently causing serious injury on the roads is frequently committed by young drivers with otherwise good character who are remorseful after the event. The Court of Appeal in this State has said that it is because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance and youth must be given relatively less weight. See the case of Neethling. Those sentiments have been endorsed by the Court of Appeal again in the case of Harrison and Rigogiannis v The Queen 2015 VSCA 349.

35 It is plainly a rare case indeed where the mitigatory consideration of youth is all but extinguished, and I make very plain this is certainly not such a case. I do not lose sight of your youth. However, the weight to be given to youth must fall away the more serious the offence and the higher the prevalence of such an offence committed by young people. General deterrence then assumes a more prominent role in this case than it might in a case involving a different style of offence committed by a young or youthful person.

36 I turn to your background and I do so relatively briefly, and that is because I accept the personal background that has been placed before me in the plea conducted by your counsel. The background is referred to in detail in the written outline he has prepared. It is referred to in the report from the psychologist and is also referred to in many of the references. I am not going to spend any time dissecting those references. I have read them all again and more than once since the plea, including this morning. I have not forgotten them. It is just that I have no reason not to accept them other than one aspect of one reference. One author, Ms Julie McLaren argued there a causal link existing between the 2012 assault upon you and your commission of these driving offences. Well, your counsel accepts that no link can be drawn on the materials placed before me, and he is undoubtedly correct.

37 I accept the personal background that has been placed before me, so really see no need to restate it back to you. Indeed you will remember that I summarised the effect of those materials in the course of the plea almost as soon as I had read them, and your counsel submitted that I had correctly grasped the import of the various references. The materials amply establish to me that you are a decent, respectful and hardworking young man from a good and decent and respectable family. You have very decent values no doubt instilled by the family you were brought up in and the school where you were educated. You did have something of a calamity in 2012 when you were assaulted in a nasty fashion, and your mother in her evidence before me, and a number of the authors of the references point to that event and its unfortunate impact upon you. You were well schooled but that unfortunate event left you scarred and lacking in confidence in some settings and you left school. It still appears to affect you. However, to your credit you found your feet when offered a job in the plumbing trade, and really you have not looked back since.

38 There were some strong work references placed before me as well. So references from family, from your brother and grandmother, for instance, as well as family friends and work and other colleagues. They are all positive, and I accept them. You have no past court history with only that one infringement for speeding alleged within the criminal history. You would have been 18 years of age by my calculation at the time of that event. True it is you were a fair way over the speed limit and your licence was suspended, but you were not speeding on the occasion for which I must pass sentence. I am not going to view that infringement and conclude that there is some pattern of bad driving at play here. It might be a total aberration, and it does not amount to any pattern at all, so I put it very much to one side and treat you as a 22 year old with no greatly relevant history.

39 It is obvious from the materials placed before me that you have been greatly worried by these proceedings. Why wouldn't you be? If you were not, I would be very worried, but you are and not merely for your own position. As I have already pronounced, you are remorseful. You puzzle as to how you can have done what you have done to others and you worry about that fact. You are deeply affected by the fact that you have damaged these innocent motorists. Your mother speaks of your sobbing in your room when she has been present. You have seen the psychologist a number of times, and another psychologist more recently still in relation to strategies to remain drug free. Drugs have obviously been a real issue for you, but things seem to have been looking up. There are a number of clean blood screens taken at a variety of different times, and you seem to have been speaking frankly with the psychologist about your concerns about relapse. You are buying an apartment together in St Kilda with one of your brothers.

40 I am sure that the process of being charged and then brought before the courts would have had a sizeable impact in deterring you from committing crimes such as these in the future. Your future has been most uncertain. So too will the sentence which I will soon pronounce undoubtedly have a significant deterrent effect upon you. No doubt I could spend far longer descending to the minute detail of the many and varied matters of personal background placed before me and going into the references in detail. But what is the point? You are clearly of good character, but unfortunately so are very many who commit this style of offence. The fact is I assess your prospects of rehabilitation as being very good and your risk of reoffending in a manner as seriously as this again in the future as quite low. So I accept the submissions of your counsel broadly. My only reason for being guarded and not applying the adjective "excellent" to your prospects is because of the issues you have had with drugs and the fact that all these prosocial factors existed previously and yet did not impede you from committing these offences. Also there is reference to the possibility of future relapse self-medication in the report of the psychologist. But I repeat, my conclusions as to your prospects are clearly very positive

41 I have mentioned the psychologist's report, that is from Mr Hsu. Your counsel told me how he was relying on this report, and equally how he was not. It gave an insight into the steps you had taken by way of self-help and your level of remorse and response to the offences as well as providing the diagnosis in terms of the substance abuse disorder and the mild depressive symptoms. It also of course raised no issues of the existence of any significant psychological or psychiatric conditions which might get in the way of your rehabilitation. So the absence of those sorts of worrying matters was itself a positive. Your counsel conceded very explicitly that the case of Verdins was not being relied upon in any fashion in this case, and that submission was plainly correct. I take into account the report in the manner raised by your counsel.

42 Indeed I really should make plain, if I have not already, that I take into account all of the materials that have been placed before me including the documents tendered as well as the oral and written submissions.

43 As to the offences themselves, your counsel conceded that this was very serious offending with very serious impact. Now in the course of the plea you and your family and friends, and many others, including three of the victims and no doubt their families heard discussions between the bench and members of counsel as to the relative seriousness of the offending. I do not want anyone to be under any illusions that anyone in this court was suggesting that this was anything other than serious offending with serious consequences. Mr Walmsley was conceding those very matters, and of course it is blindingly obvious. We have the driving, we have the evidence of impact. Why then do we have these discussions as to relative seriousness in open court? The answer is that a judge has to make an assessment of the objective or relative gravity of the offending.

44 So a court will look at a variety of matters including the nature of the driving and the level of negligence, the nature of the injuries, the nature of the offender in terms of his history and so on. It is not unusual for superior courts to try to categorise the offending and to try to place it at some position on the spectrum of offence seriousness, to consider where the facts of the particular offence and offender lie on the spectrum which extends from the least serious instances of an offence to the very worst category deserving of the maximum penalty. That is all that that was about, and so you heard phrases applied such as 'high level' or 'very high level' or 'low level'. It was the endeavour to place this serious offending onto the spectrum of seriousness. I sometimes wonder about the usefulness of the exercise. The High Court has recently contributed to this area in a decision of Kilic delivered only a couple of days ago on 7 December. The suggestion from your counsel of these being low level examples of negligently causing serious injury is simply impossible to accept, and I do not accept it. They were not. These are very clearly not low level examples of the offence of negligently causing serious injury. Such an event might include a momentary inattention by an otherwise alert and non-intoxicated or drug affected driver.

45 Well here we have drugs in your system and your deliberate movement over the double lines to overtake in a setting where you could not see what was ahead on the road and nor could oncoming motorists see you, until it was too late. The action carried with it the high risk of collision with the high risk of catastrophic impact in the event of collision. You were engaging in that manoeuvre and occupying the wrong side of the road in your vehicle at the top allowable speed which raises the question of the need to engage in any passing manoeuvre in any event. Then of course there are the injuries themselves and the impact of your crimes. Low level they most certainly are not.

46 However one can always imagine worse examples of any crime. One could always imagine a worse example of negligently causing serious injury, and I do not need to imagine them, I see them. We see them in all shapes and varieties. Instances of significant duration, shocking driving, driving by people who know positively that they are not fit to drive, who may even not be licenced or in fact are disqualified from driving. Catastrophic injuries that lead to a lifetime of actual absolute dependence for the surviving victim, maybe awful brain injuries that reduce the victim to a vegetative state or paraplegia or quadriplegia. We see them all, the sorts of conditions that Ms Betchley was thankful for not suffering, and such conduct we see committed by sometimes mature offenders, offenders with shocking records of disobedience on the roads and before the courts. So these discussions are I suspect often had before puzzled victims and puzzled family members who might query whether the seriousness is being somehow downplayed. It is not. Simply though, here the accused has no relevant history. He has not flouted court orders in the past. There have not been any. He was licenced to drive and there was no long duration shocking driving leading to the accident as sometimes happens, for instance someone travelling at 130 kilometres per hour through red lights and weaving in and out of traffic in the wrong direction for a sizeable distance. Though you had drugs in your system it is seemingly accepted to be the residual effect from the night before, so one can distinguish that to a degree from someone who has spent 10 hours straight loading up with alcohol in a pub and who knows positively that driving is impossible.

47 All this sort of discussion reflects, when you think about it, is that every offence is different and so too every offender, and the court has to consider the gravity of the current offence and the circumstances of the current offender, so sometimes it is of value to look at other instances of the offence before the court.

48 Having said all of that, the absence of some of those factors does not automatically shift the offence to the lower or lowest spectrum. Your counsel still had to grapple with the immediate cause of this disaster, and of course it was your shocking driving. Your departure from the standard of care expected of a reasonable driver was very high indeed. And that does not depend on some course of conduct. It was your act, and an act holding a very high risk of death or really serious injury. Double lines, a bend in the road, cars travelling at the speed limit and not just a car but a four-wheel drive pulling a horse float. That is a pretty significant object to pass on a dual lane carriageway at the best of times even where passing is permitted. A reasonable driver would know that there was the need to have a very decent view into the distance beyond the car pulling the float before even contemplating an overtaking manoeuvre.

49 Throw in then the fact that the vehicle pulling the horse-float was travelling at the speed limit at 80 kilometres per hour. Why pass at all? Why pass there of all places? Double white lines and a bend. Blind Freddy would see the inherent and grave danger of that manoeuvre. A prudent driver recognises the double lines are there for a reason, but even without them, a prudent driver just looking at the road topography would not pass. To go entirely onto the wrong side deliberately as you did is highly culpable. You were then filling up the entire lane travelling in the wrong lane around a bend. You were travelling at about 80 kilometres per hour and there would be an expectation of any motorist travelling in your direction hitting that same speed. You were in a sizeable vehicle leaving any motorist travelling lawfully in their lane towards you no time and no place to escape. Then of course there are the drugs, though I accept that you were not in the same position as someone who knows that they are incapable of driving.

50 Well the prosecutor was not suggesting that I should conclude that this was the highest level of offending but that it was high enough. Your counsel suggested that in each case it should be viewed as a low level example of the serious crime of negligently causing serious injury. As I have said, that is just impossible to accept. I have no doubt given the matters that I have mentioned that your culpability is high and that the offences should be characterised as falling somewhere beyond the mid-range towards the high range, though clearly they are not in the worst category.

51 There has been much discussion in the Court of Appeal about the sentencing practices for the crime of negligently causing serious injury. Indeed in the case to which I referred of Harrison and Rigogiannis, the Court of Appeal turned their attention to the existing current sentencing practice for that crime, and they disapproved past sentencing practices for high-level examples of the crime of negligently causing serious injury. The decision makes plain enough that it is a serious offence and that the courts in the past did not adequately recognise the increase in maximum penalties when that took place some years ago. Nor have the courts adequately recognised the high seriousness of the offence generally. Now they were speaking of an increase in current sentencing practices for high-level examples, but made plain enough that when dealing with less high-level examples it is clear enough that the impact of the decision will lead to an increase in the sentences even for low and mid-range offending.

52 Here we have no alcohol, we have no speed, we have drugs, and a ridiculous passing manoeuvre exposing other motorists to high risk of serious injury or worse, and which did indeed lead to serious injuries to both Ms Betchley and Ms Klawisz. Not brain injuries, not paraplegia or quadriplegia, thank heavens for them and for you. One can almost always imagine worse outcomes and I can here. Again the Court of Appeal suggests that is not that useful to compare every serious outcome with more serious outcomes and then try to place them in some hierarchy of severity. This offending was very serious and it was not a low-level example of the offence in either instance.

53 I have to consider a number of purposes of sentencing, and they are not limited only to your prospects of rehabilitation. If they were, sentencing would be pretty simple. But it is not. Your rehabilitation is relevant to my task but not as important as it might be in relation to a less serious or less prevalent offence. I am not ignoring your rehabilitation, but it is not the only sentencing purpose at play. Far from it. There are other sentencing purposes. One of them is my requirement to punish you. Of course that is a very significant purpose. I must also denounce your conduct, and I do. Again, that is an important matter as well. Your conduct was, as you know, incredibly foolish, it was totally irresponsible, and it has changed a number of lives for the worse.

54 There are other purposes of sentencing, and one such purpose is the need for this court to seek to deter you from offending in the future. I must give that principle of specific deterrence some weight in my sentencing task. You will drive in the future, I am sure of that. You must understand that you must never do anything like this ever again. I believe it is open to me to moderate the weight to be given to that purpose to a degree at least, given your youth, the absence of relevant criminal history and my very favourable findings as to your prospects of rehabilitation and quite low risk of re-offence. Everything that has happened to date in your life since the collision will play some real role in deterring you. I cannot ignore the sentencing purpose, I am not saying that I am. It must be given some weight but just not the weight that might apply in a different case, for instance a case of an older and seasoned offender with a lengthy history. So too for the same reasons do I think I can moderate the weight to be given to community protection.

55 However, general deterrence is a very different proposition altogether. I believe it is the paramount purpose of sentencing in this case. This court must send a loud and clear message to other individuals in the community who might be minded to commit this sort of serious driving offence. There are very evidently enough who choose to drive in a ridiculous or dangerous or criminally negligent fashion, and regrettably, many are young men of previous good character and who after the event deeply regret their conduct as I am confident that you do. People must understand that such conduct will just not be tolerated by the courts. Cars are potentially lethal weapons. We rely on the good sense and the skill of drivers, and most of us do our best. Some do not. Some drive affected by drugs or alcohol or without any proper regard to the signage or lines or conditions or even basic and plain common sense. Common features are extreme levels of negligence, a very high risk of collision and the consequent risk of very serious injury. Well, drivers must understand that such conduct when as it often enough does, leads to serious injury, will almost inevitably be met with a very sizeable term of imprisonment.

56 The courts and the community are heartily sick of the carnage on our roads. When will the message get out? Especially to young and/or inexperienced drivers? The fact is with the human element at play even decent drivers will sometimes make mistakes or misjudgements, and sometimes they have disastrous consequences. But the criminal law does not punish those sorts of errors. It is reserved for conduct that falls so far below the standard of care as to deserve punishment. Well those who might be tempted to drive in such a manner as to expose others to serious injury or worse, they must understand that in doing so they will be staking significant portions of their own life. If they happen to survive the collision caused by their criminal negligence, one which seriously injures another, they must know in advance that they will likely spend a significant period of time behind bars.

So the court has a role to play in conveying this message through the sentences imposed. Take those ridiculous risks on the road and you are risking your own future as well.

57 I must and I do pay regard to current sentencing practices.

58 I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of negligently causing serious injury cases, but bear in mind as I must the incremental uplift in sentences contemplated by the Court of Appeal decision in Harrison and Rigogiannis. That decision has a very complete survey of sentencing decisions for the crime of negligently causing serious injury. Your offending, though not constituted by a course of conduct or hooning, it still must be classified as involving a high level of negligence and involving relatively high-level injuries in the case of Ms Betchley and mid-level for Ms Klawisz. I looked also at the case of Halket to which I was referred, and accept and take into account the distinctions drawn by Mr Walmsley as to the impact of drugs in that case and significantly the driver's knowledge of that fact in that case, something which I believe was absent in your case. I must say I was simply not assisted by being taken by your counsel to the case of Pratley. That was a charge of incitement to murder. It was a totally different style of offence with far less prevalence amongst young persons, and for that matter, with an accused who had undertaken to give evidence. I need no reminding of the polluting effect of prison as discussed by Priest JA in that case, but as I say that case was in no way comparable and says absolutely nothing as to the sort of sentence required in this case.

59 I have taken into account all of the materials placed before me and the submissions made by your counsel. Your counsel was arguing that it would be open to simply admit you to a suitably conditioned community corrections order. That submission was in my view just entirely unrealistic given the nature of the offending. There is just no doubt in my mind that a substantial term of imprisonment is the only available alternative for your offending. The question is the length of the sentence and whether or not I am able to blend the prison term with release on a community corrections order. There is only that power where less than two years' imprisonment is imposed.

60 That decision of Boulton that was delivered back in December of 2014 undoubtedly changed the sentencing landscape significantly in this State. I have said quite often since, that the guideline judgment seems to have been greatly misunderstood and misapplied by very many in the legal profession. There is scarcely a plea conducted in this court where counsel do not argue for release on a community corrections orders as though every crime must necessarily result in such an order.

61 The reasons in Boulton were of a general nature. There was nothing in that case obliging a sentencing judge to reach a particular conclusion in a particular case as the Court of Appeal made plain enough in the case of Boulton itself, and saw the need to remind the profession of in very many cases since including amongst others, the cases of Hutchinson, Scammel and McGrath.

62 It is obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing just cannot be given adequate weight by use of such an order even in combination with a significant prison term. The Court of Appeal in a case of Basic delivered earlier this year in Mayspelt out that the community correction order disposition was just not having its desired effect, that it was being misused and misunderstood for that matter by judges who were passing sentences almost as a ploy or device to keep open the disposition. That there seemed to be many cases where sentences just below two years were imposed simply to allow combination type sentences and that this approach tended to distort the whole process of sentencing. As the Court of Appeal said in that decision of Basic, it is not the way that sentencing is meant to take place, and this process distracted from a true consideration of the gravity of the offending and had led to artificial or compressed prison sentences to allow a community corrections order in conjunction.

63 The Court of Appeal in that decision urged action by Parliament, and Parliament has acted. Parliament have legislated now to significantly restrict in the future use of the community corrections order disposition and is setting out some offences for which an order cannot be imposed, other offences where certain circumstances must exist before one can be imposed. None of the offences you have committed would be excluded or limited. They are capping the length of orders at five years, and even where still available, the legislation will prevent the order being made in combination with a prison sentence of greater than 12 months. That is the effect of the Sentencing (Community Corrections Order) and other Acts Amendment Act 2016. It is awaiting Royal assent. I hasten to add that these provisions are not yet in force. They do not apply to my task.

64 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless a court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. As I have said your offending demands that you serve a substantial term of imprisonment. There is just no question in my mind as to that fact. I believe your crimes are far too serious. They have had disastrous consequences for Ms Klawisz and Ms Betchley. Regrettably they must have dire consequences also for you, a young and decent man being sent to prison for the first time aged 22. As I said, before commencing these reasons this morning, there are just no winners in this sort of case. It is the nature of this style of offence. There are losers on every side as I look out into the body of the court. Damaged victims, families, imprisoned young men or women worried and distressed relatives on all sides. There are no winners. When will the message get out?

65 It is not my task to compress the sentences as some device to permit the imposition of a community corrections order. It is not my job to hunt for devices or to compress sentences artificially to render a particular disposition available to the court even if I can see some advantages in such a disposition. You are a young man of good background, and I can tell you, it gives me no pleasure at all to send you to prison. Far from it. You will find prison tough, and I take that into account. It is your first taste of it. You have no experience of prison. So of course I harbour some anxiety about the potential damaging impacts of prison. In appropriate cases since the case of Boulton, I have imposed prison terms, sometimes significant ones in combination with a community corrections order. They can be useful dispositions and they provide certainty of release, unlike a non-parole period, as well as providing for a longer period of supervision in the community than may exist by the fixing of a non-parole period. These orders in combination can target the particular needs of the offender. However my duty is to impose appropriate sentences.

66 The submission as to a straight community corrections order is simply untenable. The submission as to a mixed disposition of up to two years imprisonment with release on a community corrections order is for the same reasons simply not open to me. I do not believe it is open to me in the sound exercise of my sentencing discretion, and that is what I have to do, I am exercising a legal sentencing discretion. I believe that given the nature of your offending, I must impose sentences the dimensions of which make impossible any combination type disposition. Your offending is far too serious to do otherwise. The sentence needs to adequately reflect general deterrence, denunciation and punishment. A community corrections order, even in conjunction with a term of up to two years prison, would not achieve these purposes. So I believe I must pass appropriate individual sentences, express levels of cumulation and then fix a non-parole period. The Adult Parole Board will be in a position to assess your needs at around the time of your becoming eligible for release on parole. That, I am afraid, is a far distant event.

67 I do not know whether you will be released on parole or not. That is not for me to consider. I have no power or control over the Adult Parole Board. In fact I am not even permitted to take their possible action into account. I must proceed on the footing that you will serve every day of the head sentence which I will soon pronounce[1].

68 The various matters raised on the plea on your behalf are all taken into account in fixing the head sentence as well as the non-parole period. In fixing your non-parole period, I recognise particularly your youth and my judgment as to your having very good prospects of rehabilitation.

69 I have taken into account the principle of totality. This was a single episode giving rise to these four offences on the indictment and the one summary matter. However the offences involve four distinct victims with differing impacts and differing elements. Of course Ms Betchley and Ms Klawisz were actually seriously injured. But even those who were not seriously physically injured have been affected by your crimes. They were very much placed in danger and risk of serious injury and escaped by the skin of their teeth. They were not minor examples of the crime of reckless conduct endangering serious injury, far from it. So I cannot ignore the fact of the differing victims and differing impacts. The victims cannot be reduced to meaningless statistics by a single base sentence for the most serious offence and then concurrent sentences for the rest. They are separate victims and I must adequately recognise that fact. Significant cumulation is required for the sentence imposed for the serious injury caused to Ms Klawisz. It was a serious crime in its own right and with serious impact. Still I must moderate, and I do, as far as I believe I can the extent of cumulation.

70 I then must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality, and I have done what I must do always, I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.

71 I have been requested to make a couple of ancillary orders. The first of those is a forensic sample order. That application is not opposed and I pronounce the order in the terms in which it is sought. What I am dealing with here, Mr Sutic, is the forensic procedure that will be undertaken. There will be a swab run around the inside of your mouth. I am not authorising the taking of a blood sample. I see no need to.

72 I order that pursuant to s.464ZF of the Crimes Act you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the relevant provisions until a sample of sufficient is obtained for placement on the database. This is made in relation to each of the indictable offences before me, that is the charges on the indictment, and the making of the order is justified, in my view, owing to the seriousness of the offending, the fact that there is no opposition to it, and that I judge it to be in the public interest. As I say, I have authorised only the taking of a swab, not a blood sample, and the authorities will be entitled to use reasonable force to enable that procedure to take place. They shouldn't need to, it is a straightforward business, and no doubt if they encounter difficulties in that they would be back making application for a blood sample which to this point I have not authorised. I have signed and pronounce that order.

73 In addition I have been asked to make a compensation order in favour of Kira Betchley whose vehicle was destroyed in this event. Again there is no opposition to the making of this order, and I am satisfied that Kira Betchley has sustained loss courtesy of your commission of the crime of negligently causing serious injury, her motor vehicle has been destroyed, and I order pursuant to the provisions of s.86 of the Sentencing Act that you pay to Ms Betchley compensation in the sum of $3000. I have signed that order as well.

74 On charge 1, that is the charge of negligently causing serious injury relating to Ms Betchley, I convict and sentence you to 38 months or 3 years and 2 months imprisonment. That is the base sentence. On charge 2, which is a charge of negligently causing serious injury relating to Ms Klawisz, I convict and sentence you to 2 years and 4 months imprisonment. On charge 3, reckless conduct endangering serious injury to Rebecca Rundle, I convict and sentence you to 15 months' imprisonment. So too on charge 4, reckless conduct endangering serious injury to Kylie Phillip-Collins, I convict and sentence you to 15 months' imprisonment. On the summary offence I convict and fine you the sum of $600.

75 I make then the following orders for cumulation.

76 I direct that 13 months of the sentence imposed on charge 2 and 3 months of each of the sentences imposed on charges 3 and 4 are to be served cumulatively upon the base sentence and upon each other.

77 This results in a total effective sentence of 57 months or 4 years and 9 months imprisonment. I fix a period of 29 months, that is 2 years and 5 months during which you will not be eligible for release on parole.

78 You have been in custody in relation to these matters for a period of 10 days and that period has already been served under this sentence. So that declaration is to be noted in the records of the court.

79 In relation to charge 1 and 2 and the summary offence, I must make orders against your licence. You are going to prison for a substantial period obviously. Whenever you are released, you will need to establish yourself back in the community. You will hopefully go back into the workforce and obviously the absence of a licence in your trade is a matter of a significant disadvantage. I am mindful of that and there is something of a tension between your rehabilitation on the one hand, and punishing you and protecting the community on the other. I am not going to exceed in a practical fashion any of the minimum periods of disqualification. However, given the nature of the driving, the order must have a real effect upon you, and the only way it can is if it is fixed by way of some future defined event. Otherwise, of course, you would serve the disqualification 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 the cases, for instance of Tran [2002] VSCA 52; 2002 4 VR 457 and Caldwell [2004] VSCA 40; 2004 8 VR 1, to which I refer. What was the date, it was 15 July that he entered bail, was it? It was that date that he was then bailed with the condition he not drive a vehicle?

82 Pursuant to section 89 of the Sentencing Act, on charge 1 and charge 2, so that is the negligently causing serious injury charges, I cancel all licences to drive and disqualify you from obtaining another permit or from driving in this State. My order will be backdated to commence from 15 July of this year. So all licences to drive are cancelled. You are disqualified from obtaining another permit or from driving in this state, effective from that date, 15 July, and ending 2 years after you are first released from custody whether on parole or the expiry of the sentence. What that means is there will be an order as against your licence in existence upon your release for a two-year period.

83 Pursuant to s.89C of the Act, I find that the driving was under the influence of a drug of dependence which contributed to the offence. As to the summary offence, all licences are cancelled and you are disqualified from obtaining any further licence or driving in this State for a period of 3 months effective from 15 July 2016. You have already served that disqualification.

84 Finally, I have told you that I have taken into account your early guilty plea and reduced your sentence by virtue of it. But for your guilty plea I would have imposed greater sentences. Had you been found guilty of these offences following a trial I would have convicted and sentenced you to 7 years' imprisonment. I would have fixed a non-parole period of 5 years'. And that statement is to be entered in the records of the court.HIS HONOUR: Let me just ask, Ms Dipietrantonio, are there any matters that I have overlooked?

85 MS DIPIETRANTONIO: No, Your Honour, none that I can see.

88 HIS HONOUR: And your client has been in custody for a reasonably short space of time. Do you need me or want me to make any endorsements in the custodial records at all or not?

89 MR VASSIS: No, I think on the last occasion Mr Walmsley indicated to Your Honour it was his first time in custody and I think Your Honour

91 MR VASSIS: Aside from that, Your Honour, there is nothing else.

92 HIS HONOUR: So there is no need, I have already done that.

93 MR VASSIS: I understand the prison people have already spoken to him about classification and so forth.

94 HIS HONOUR: It is very much a foreign environment for him, and I am acutely aware of that, and for his family, of course.

96 HIS HONOUR: Are you walking him through the steps that need to be taken so they can access him and have visits?

97 MR VASSIS: I am and I'll continue to do that, Your Honour.

98 HIS HONOUR: All right. You'll go down and see him downstairs then?

100 HIS HONOUR: That completes the matter then. I'll sign those orders down in chambers. If Mr Sutic could be removed.

[1] Section 5(2AA) Sentencing Act 1991