DPP v Younis [2023] VCC 1173

On 24 December 2018, you attended Craigieburn police station upon request and were arrested and interviewed. You said that the traffic light turned orange either 'just as', or 'just before', you crossed the line of the intersection and you had no time to stop safely. You maintained your certainty of this even after you were shown the CCTV footage saying: 'I know it was yellow. I know it was. I just couldn't stop. I knew that I couldn't stop so I just kept going.'

1. As to the collision itself, you said as you passed the 'traffic light line' a car that had been ahead of you turned left and it was at that moment that you saw Mr Ziro, who, according to you, was 'definitely' facing a red light. You said you swerved to the right and made an instinctive decision to accelerate to try to avoid him, but he hit you and then you passed out.
2. As to your speed, you said you knew that the speed limit on Aitken Boulevard was 60 kilometres per hour and although not sure how fast you were driving you assumed it was 'about 60 or 65'.
3. On 13 October 2019 both you and Mr Ziro were charged with culpable driving causing death, dangerous driving causing death, and reckless conduct endanger life. You were also charged with the summary offence of entering an intersection against a red light.
4. On 29 April 2021 you were committed for trial to this court on all charges following a contested committal. The matter resolved one week prior to the listed trial date of 26 September 2022 and on that day you pleaded guilty to a single charge of Dangerous Driving Causing Death contrary to s319(1) of the Crimes Act 1958.[4]
5. The offence of Dangerous Driving Causing Death carries a maximum penalty of 10 years and a mandatory loss of licence of at least 18 months.[5] Further, the date of your offending means that a custodial sentence (not being one combined with a corrections order) is mandatory unless certain exceptions exist.[6]
6. After a false start in January the plea hearing proceeded before me on 5 July 2023 and it now falls to me to sentence you for your conduct. Your counsel, Mr Fitzgerald, argued that one of the exceptions to the requirement that I impose a custodial sentence did exist and that I should not do so. The prosecutor, Ms Parkes, submitted that no such exception was made out and that the only appropriate sentence was a term of imprisonment.
7. In arriving at an appropriate sentence, I am required by law to have regard to a variety of sometimes countervailing factors.[7] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves in order to arrive at a just sentence.

1. I have already briefly outlined the circumstances of the collision. It is not necessary to outline the subsequent police investigation in detail. Suffice to say that neither the weather, which was dry, nor the condition of your car, which was found to have all four tyres in extremely poor condition, nor the condition of Mr Ziro's car, caused or contributed to the collision.
2. In terms of the scene, James Mirams Drive and Aitken Boulevard were both sealed bitumen roads in good condition. They ran in an approximate East-West and North-South direction respectively and met at right angles, with the intersection being governed by traffic lights and illuminated by overhead street lighting.
3. On your approach to the intersection, Aitken Boulevard had two lanes of traffic in each direction, a dedicated left turning lane separated by a raised concrete island and a dedicated right turn lane preceded by a painted island.
4. On Mr Ziro's approach James Mirams Drive had a single lane of traffic in each direction, a dedicated left turn lane separated by a raised concrete island and a dedicated right turn lane preceded by a painted island.

1. Turning to your personal circumstances. These were outlined in defence submissions, a psychological report and the various character references and letters tendered on your behalf. Forensic Psychologist Laura Fleming saw you on 4 November 2022.
2. You are now 29 years old. You were born in Iraq in 1993. War and unrest prompted your family to move, first to Greece and then to Australia. You settled in Melbourne in early 1995 when you were 16 months old because your uncle was already living here.
3. Your family is Catholic and involved in the local church. The main language spoken at home is Assyrian, although you are proficient in English. Your father worked as a mechanic, operating a business, Hume Auto Wreckers, with your uncles while your mother attended to home duties. You told Ms Fleming that your childhood was 'great' and that your family, including your extended family, was close.
4. You are very family oriented and remain close to your parents and younger sister. After your grandfather died in January 2021, you spent considerable time caring for your ill grandmother until she also died in October 2021.
5. You attended primary and secondary schools in Roxburgh Park, where you lived. You told Ms Fleming that you had no difficulty in literacy or numeracy. You had good relationships and friendships with other students and got along well with teachers and enjoyed school. You played soccer and karate and joined drawing and reading groups. Your grades were good enough for you to proceed to tertiary study.
6. You started a course in Accounting at RMIT but left after one year. You completed a Certificate III in Automotive Mechanical Technology and then stared a medical course at James Cook University in Cairns, intending to study dentistry, but did not enjoy it and returned to Melbourne after eight months.
7. You have an excellent work history. You started working part time at the family business when you were 16 and have worked continuously ever since. At different times you have also worked as a forklift driver, in a warehouse and installing mechanical and electronic features in trucks.
8. Over the years your uncles withdrew from the family business and you took on the responsibility of running the business with your father, although he is becoming more infirm. You told Ms Fleming that although the business can be stressful you enjoy it.
9. In 2018 the business was required by authorities to clean up and refit the worksite. This has been a big undertaking involving regular inspections and it is still going. The responsibility for complying has largely fallen to you and there has been a significant financial impact on the business. Because of this, you do not take a wage but give any money you earn to your family. Your father says he would not be able to continue in the business or continue the clean up without your assistance. Although the land is owned by your father and his brothers he does not believe he would be able to sell it in its current state. Further, he has been denied Centrelink because he owns his own home and is a director of the business. Your family is financially dependent on you and your mother who currently works in retail, earning about $450 a week.
10. You have had two significant relationships and are currently in a loving relationship that started in 2019.
11. You have no drug or alcohol issues and no criminal priors. You do, however have a relevant traffic history which started when you were 19 years old when your licence was suspended for six months for exceeding the speed limit by between 40 kilometres per hour and 45 kilometres per hour. Then, when you were 20 your licence was suspended for one month for exceeding the speed limit by between 25 kilometres per hour and 30 kilometres per hour. The same thing happened when you were 21 when your licence was again suspended for one month for exceeding the speed limit by between 25 kilometres per hour and 30 kilometres per hour. In 2017 you had your first court appearance for driving offences. In the Ringwood Magistrates' Court you were placed on an adjourned undertaking for failing to have proper control of a vehicle, driving a vehicle causing loss of traction, and making unnecessary noise - improper use of a motor vehicle. That undertaking only finished 24 days before this offending.
12. I turn to Ms Fleming's assessment and diagnosis. You told her that you used to be outgoing and energetic, but since your offending you do not enjoy going out, spend most of your time at home and feel anxious in social settings. You no longer do activities you once enjoyed, such as playing pool, and have trouble sleeping. You have also put on weight and suffered recurrent cysts and abscesses which you believe may be caused by stress. A number of your character referees confirm that you have become much more subdued since your offending.
13. You also told Ms Fleming that you were anxious and stressed about your family and the family business in the event that you are incarcerated, and what the loss of your income as the main breadwinner would mean for your family's financial security.
14. Ms Fleming assessed you using a Depression Anxiety Distress Scale, which is a self-report questionnaire that measures an individual's experience of symptoms of depression, anxiety, and stress at a point in time. The results indicated symptoms of severe depression, severe anxiety and moderate stress.
15. You also completed a self-reporting checklist for Post-Traumatic Stress Disorder ('PTSD') symptoms. Ms Fleming found that you had clinically significant PTSD symptoms caused by the collision. These included intrusive memories, flashbacks, psychological and physiological distress when reminded of the events, negative beliefs about yourself, loss of enjoyment, poor concentration, disturbed sleep, and avoidant behaviour.
16. I accept that you have been significantly impacted by the death of your good friend Mr Baho and all that has happened since. I take into account that you have had the worry of the criminal proceedings and your uncertain future hanging over your head for almost five years.

Objective Gravity of your offending and moral culpability

1. Two factors of central importance in determining your sentence are the objective gravity of your offending and your moral culpability.
2. Causing the death of another person by driving dangerously is inherently serious. The sentencing mandates applicable to the offence make that perfectly clear as does its maximum penalty of 10 years. I will return to the legislative scheme shortly.
3. The offence covers a wide range of conduct from momentary inattention to intentional risk-taking behaviour, but always involving a serious breach of the proper management or control of a vehicle so as to be in reality - not just speculatively - potentially dangerous to others. The driving must be such as to expose the public to some risk over and above that ordinarily associated with the driving of a vehicle, including by persons who sometimes drive with less than due care and attention.[8]
4. The essence of the offence is not just the dangerousness of the driving but that dangerousness in association with the taking of human life.[9]
5. In assessing offence gravity and moral culpability the extent of the risk posed by the driving, the potential harm from that risk, the objective dangerousness of the driving and the driver's state of mind are all relevant.[10]
6. I found that Mr Ziro made a conscious and deliberate choice to enter the intersection regardless of the colour of the lights and regardless of the traffic and that his driving therefore fell into the intentional risk-taking end of the spectrum of conduct for this offence and that his moral culpability was correspondingly high. Further, his driving posed a considerable risk of serious harm to other road users, including his own passenger, albeit the magnitude of the risk at 2 am was less than at other times. In assessing his moral culpability, I also took into account that he was an inexperienced probationary driver who had consumed alcohol knowing he was not allowed to do so. On the other hand I found that his youth and immaturity at age 18 lessened his moral culpability somewhat.
7. Although more experienced than Mr Ziro, you were also an inexperienced probationary driver.[11] As such, like him, you should have been vigilant to ensure you obeyed the law and drove safely. You owed it to your own passenger as well as all other road users to do this. This was especially so given that by that time you, unlike Mr Ziro, had already accumulated an unfortunate driving history. Not only should you have learned from your prior offending, you were seven years older than Mr Ziro and should have been more mature and responsible.
8. In your case you it was agreed that the dangerousness comprised you:
   • entering the intersection against a red traffic control signal; and
   • driving at 92 kph in a 60 zone.
9. Notwithstanding that you said in your interview that you did not see Mr Ziro's car until you crossed the traffic light line and it was at that time that you took evasive action by swerving and, accelerating, in your words, 'a little bit', it was agreed between the parties that the factual basis upon which I should sentence you is that considered by the defence expert Dr George Rechnitzer. That is, you were driving between 60 to 65kph along Aitkin Boulevard when you saw Mr Ziro's car approaching the intersection on your left. Believing he was going to turn right into Aitkin Boulevard and intending to avoid a collision you accelerated at full throttle and also swerved to your right. You started accelerating when you were between 70 to 100 metres from the point of impact to reach a speed of 92 kph at impact about three to four seconds later.
10. I will proceed on that agreed basis.
11. Mr Fitzgerald argued that given you were not driving irresponsibly prior to you seeing Mr Ziro, indeed you were the designated driver and to your credit had less than one drink on the night, and that your intention was to avoid a collision rather than create a situation of danger, the offence gravity and your moral culpability were low. Indeed, he submitted they fell below the recognised low moral culpability cases of momentary inattention.
12. I am afraid I cannot agree.
13. You entered the intersection six seconds after the light turned orange and two seconds after it turned red. Your insistence in the interview that the light facing you turned orange either just before or just as you entered the intersection and that you did not have time to stop was plainly wrong, as you now admit.
14. What you should have done in the scenario you faced was manifestly obvious. If you wanted to avoid a collision you should have applied the brakes. Indeed, since the light facing you was orange you should have done this regardless of Mr Ziro. At 60 to 65 kph and that distance from the intersection you had ample time to stop and obey the law. It is incomprehensible that you did not.
15. Your decision to accelerate as hard as you could when the light facing you was orange and you knew there was a car entering the intersection from your left and that there were other cars about was reckless in the extreme. This was not momentary inattention or a split-second misjudgement, which are the classic cases of low culpability. You made the initial decision and then you stuck with it, entering the intersection two whole seconds after the light had turned red.
16. The fact you were motivated by a desire to avoid a collision reduces your moral culpability somewhat, but I still regard it as high. There was a completely safe, lawful and obvious option available to you, but instead you took a calculated risk that you could avoid a collision by speeding and disobeying the traffic control signals. You did so knowing you had priors for speeding and driving irresponsibly. You not only placed yourself and your passengers in danger, but also other road users, including any pedestrians who may have been around, noting that it was a built-up area, although 2 am.
17. That said, just as with Mr Ziro, the fact that you were not solely responsible for the death of Jack Baho does reduce the seriousness of your offending.[12] If Mr Ziro had not simultaneously driven dangerously, no-one would have died. Since he did do that and thereby materially contributed to the death of your passenger, the sentence I impose on you should be reduced.[13]
18. Further, whilst I found that your actions did not reduce Mr Ziro's moral culpability because your driving had no influence on him whatsoever, the same cannot be said in reverse. You alone are responsible for your conduct, but Mr Ziro's bad driving was the trigger for yours. Accordingly, whilst I assess your moral culpability as high, it is less than Mr Ziro's.

1. One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. The rationale for this is to promote consistency of approach in sentencing; particularly, the application of relevant sentencing principles.
2. Since the offence of dangerous driving causing death was introduced into the Crimes Act in 2004 its penalty has changed several times reflecting Parliament's view of its seriousness.
3. First, in March 2008 the maximum penalty was increased from five to 10 years. Then, on 28 October 2018 it became a Category 2 offence meaning that it was subject to a form of mandatory sentencing whereby offenders had to receive custodial sentences, not in combination with corrections orders, unless certain exceptions existed. On the same day the exceptions were tightened in several respects making it even harder to avoid the mandatory dictates.
4. Even prior to mandatory sentencing our Court of Appeal had made it clear that non-custodial sentences for offences of dangerous driving causing death should be exceptional and that courts were, in essence, sentencing too leniently for the offence.[14] Only cases of low moral culpability such as momentary inattention or misjudgment were regarded as suitable for non-custodial dispositions. Thus, even if one of the exceptions to the mandatory sentencing regime is made out, it may still be appropriate to impose a custodial sentence on ordinary sentencing principles.
5. As your offending occurred after 28 October 2018, you are subject to the mandatory sentencing scheme I have just outlined. I shall return to its application in this case later in these reasons, but needless to say, it is very hard to escape its dictates.
6. Any consideration of sentencing practices needs to take into account the chronology of Court of Appeal pronouncements and legislative changes I have outlined.
7. The most recent Sentencing Advisory Council Statistics indicate that approximately 55% of people sentenced for the offence of dangerous driving causing death over the five years between 1 July 2016 and 30 June 2021 received an immediate term of imprisonment ranging in length from several months to 6.25 years with two to three years being the most common term. The next most common sentence, at approximately 40%, was a Community Corrections Order.
8. There are several things to note about these statistics. First, statistics are of limited assistance because they never tell you anything about the details of the case. Secondly, a number of the offences captured would have been committed prior to the offence becoming a Category 2 offence and thirdly, some of the sentences may have been shorter because they were imposed during COVID reflecting the combined effect of the Worboyes'[15] principle and the increased burden of imprisonment during the pandemic.
9. Save for the case of Mr Ziro, I was not referred to any strictly comparable cases by either counsel. I was referred to cases for statements of practice and principle by the prosecutor and to examples of recent county court sentences not involving imprisonment by defence counsel, but as I say none of them are really on par to yours.
10. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

1. You are entitled to a significant discount in your sentence for the fact you pleaded guilty. Your plea came relatively late and there was also a contested committal. However, you were originally charged with a more serious offence and there were negotiations prior to the matter resolving as to the factual basis for the plea.
2. In pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. Moreover, your plea of guilty in the current COVID-19 environment entitles you to an even greater discount.[16] That is the Worboyes' principle I earlier referred to.
3. Mr Fitzgerald submitted that your plea was accompanied by remorse. It is true that your character referees do speak of your remorse and the effect of the events of the night on you. However, you also told Ms Fleming on 4 November 2022 that: 'You did not believe you had caused the accident but were pleading guilty on the advice of your legal representative that there was no way to prove you did not cause the accident.'
4. I absolutely accept that you are very sorry for the pain you have caused your family and friends and the pain you have caused the family and friends of Mr Baho and in that sense are remorseful. However, as the courts have made clear, true remorse is not anxiety at the prospect of being punished nor simply regretting one's conduct. True remorse involves a desire to make amends and a determination to change one's behaviour.[17]
5. Just as with Mr Ziro I am not satisfied that you fully appreciate the role you played in Mr Baho's death. Moreover, it appears that some of your referees, may not truly appreciate your role either. The death of Mr Baho was a tragedy and it was clearly unintentional. However, to the extent that the word 'accident' suggests an unfortunate incident which was unavoidable, what happened on this night was not that. Lest there be any doubt about it, the death of Mr Baho was completely avoidable, if only either one of you or Mr Ziro had driven responsibly.

Impact of your offending and circumstances of your victims

1. I am required to take into account the impact of your offending on your victims and their personal circumstances.[18]
2. Mr Baho's family declined when given the opportunity to make Victim Impact Statements. However, Mr Baho's father asked that it be conveyed to the court that 'the offending has had a profound and enduring effect upon them', and that Jack was a 'much loved son and brother and he is greatly missed by his family and friends.'
3. It does not take much imagination to appreciate their suffering.
4. Although what the Sentencing Act requires me to consider is the effect of your actions on people other than yourself, I do also take into account how you have been affected. You have lost one of your best friends and must live with the fact you were partly responsible for his death. This is a severe punishment in itself.

1. Turning to your character and risk of reoffending.
2. There were nine character references provided by your family, friends, including Jack Baho's sister in law, Amanda Baho, and also a priest. As well as speaking of your continuing remorse and suffering Amanda Baho, told the court that over time Jack Baho's extended family have been able to forgive you for your involvement in his death.
3. It is a testament to you that so many people were prepared to put pen to paper in your favour and also to attend court to support you and I note that many people are here supporting you today. You are undoubtedly well respected and loved by your friends and family. The common themes are that you are caring, loyal, kind and generous. You are also hardworking and committed to the family business. I accept that your character is as described.
4. Your prior traffic history is, however, of concern because it demonstrates an attitude of continued disobedience to the law. Road laws are just as important as other laws. This attitude started when you were 19 and continued until this offending six years later. However, there has been no offending since November 2018 and that is a period of almost five years. As I said to Mr Fitzgerald one could feel some confidence that you have finally learned your lesson.
5. Ms Fleming considered your risk of recidivism to be low taking into account your protective factors such as good relationships with family and your community, and lack of negative risk factors such as substance use.
6. At 29 you are still a young man and you have a lot going for you. Overall, I consider your prospects to be very good.

1. In determining the appropriate sentence I must consider how a term of imprisonment would be likely to impact you. Facing prison for the first time is hard for anyone but there are several reasons why you will find it even harder. First, I accept Ms Fleming's opinion that your depression and anxiety and PTSD will mean that prison will likely weigh more heavily upon you and that you are unlikely to receive the specific treatment you require.
2. Secondly, I accept that you will be worried about the wellbeing and finances of your family without you being there to run the business and attend to the rectification works.
3. Finally, although this is not peculiar to you, you are being sentenced during the COVID-19 pandemic. Although the restrictions imposed in prisons to prevent the spread of the virus have now largely been removed, I accept that you are being imprisoned in a time of uncertainty and that those restrictions may well be reimposed with the consequence that prison would once again be more onerous.

Is the substantial and compelling circumstances exception to mandatory sentencing made out?

1. Since 28 October 2018, any special circumstances relied upon to constitute an exception to mandatory sentencing must not only be 'substantial and compelling' so as to justify the imposition of a non-custodial sentence, but also 'exceptional and rare'. Further, the Sentencing Act says that in determining whether such circumstances exist a court must regard general deterrence and denunciation as having paramount importance, give less weight to an offender's personal circumstances, disregard certain other mitigating factors[19] and consider Parliament's intention that the offence should ordinarily attract a custodial term.
2. Mr Fitzgerald argued that your low moral culpability, plea of guilty, rehabilitative prospects and additional burden of imprisonment because of your mental health and family predicament did, in combination, qualify for the exception. The prosecution disagreed.
3. How a court should approach the question was recently considered by the Court of Appeal in the case of Lombardo.[20] Once the facts relied upon have been established, it is an evaluative judgment unhindered by any notions of burden of proof. I need to determine first, whether there are powerful circumstances (alone or in combination) justifying a non-custodial disposition and secondly, whether those circumstances are wholly outside the ordinary factors typical of the offence of dangerous driving causing death, noting it is an offence often committed by young people of previous good character who are racked with remorse and grief and with excellent prospects for rehabilitation.
4. The Court in Lombardo also made it clear that the 'exceptional and rare' qualification to the exception means that even cases of low moral culpability, previously the only cases thought suitable for non-custodial dispositions, are not exempt from the mandatory sentencing provisions.[21] Indeed the Court described them as being 'targeted'.
5. I am not satisfied that any of the matters relied upon on their own or in combination establish the exception. First, under the Act I am specifically prohibited from taking into account your rehabilitative prospects in determining the question, although they may be relevant for other reasons, such as the need for specific deterrence. In any event as I have just indicated excellent prospects of rehabilitation are not at all uncommon for people who commit this offence. Secondly, financial and emotional hardship is a not uncommon sequalae of imprisonment for all offenders, including those who commit the offence of Dangerous Driving Causing Death, nor is reactive PTSD or anxiety or depression. Finally, for reasons I have already explained, I do not regard your moral culpability as low, and even if I did, as Lombardo also indicates that would not be enough on its own to justify a non-custodial disposition.

1. Under the Sentencing Act 1991 the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
2. Generally, a court must not impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. In the case of the offence of Dangerous Driving Causing Death those principles, being the principles of proportionality and parsimony, are qualified by the terms of the mandatory sentencing scheme.
3. The importance of general deterrence and denunciation in sentencing for offences of Dangerous Driving Causing Death have been repeatedly emphasised by the courts and are now also enshrined in the Sentencing Act by virtue of the provisions prescribing the manner of determining whether there are substantial and compelling circumstances justifying a non-custodial or combination sentence.[22] Members of the community must understand that if they drive dangerously, with consequent loss of life or serious injury, significant punishment will follow.
4. Further, the sentence must manifest the community's disapproval of dangerous conduct which results in the loss of human life. Such conduct not only harms the innocent victims it harms the community as a whole.
5. In light of your prior driving history, I consider my sentence does need to specifically deter you from driving irresponsibly again, but it does not play a significant role in the sentencing process and nor does protection of the community.
6. Your potential rehabilitation is important, although not as important as it would be if your offending were not so serious and the need for general deterrence so great. The sad fact is that serious driving offences are often committed by young people, as you were, and it is they who most need deterrence. It was said in a well-known case of Neethling,

'it is precisely 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'.[23]

1. That said, I do intend to allow for your rehabilitation by setting a low non-parole period.
2. Of course, my sentence must also be just and take into account the mitigating factors I have already outlined in detail. It must also take into account the sentence I imposed on Mr Ziro. He was sentenced on the basis that his driving was completely independent of yours and I found his moral culpability to be higher. He had some mitigating factors that you do not have, such as greater youth, lack of priors, earlier plea of guilty and the loss of the option of a Youth Justice Centre order, but you have some mitigating factors that he did not, such as the fact your driving was influenced by his, the worry about your family and two more years of delay. You both have other mitigating factors in common. The prosecution did not quibble with the defence submission that you deserve a lesser sentence than Mr Ziro. In the end I agree, although I do not think the disparity should be great.
3. Weighing all the competing considerations as best I can I sentence you as follows. Please stand, Mr Younis.

1. I convict and sentence you on the single charge of Dangerous Driving Causing Death to a term of imprisonment of one year and 10 months, so that is 22 months. In respect of that sentence I set a non-parole period of 11 months. That non-parole period is the earliest time at which you can be released. It does not necessarily mean you will be released after 11 months; it is up to the Adult Parole Board as to when you will be released.

1. As you have pleaded guilty to a serious motor vehicle offence as defined in the Sentencing Act I am obliged to cancel your licence and disqualify you from driving for at least 18 months on that offence. In all the circumstances, including your prior driving history, I consider it appropriate to exceed that minimum. I cancel and disqualify you from driving for two years and six months effective from today.

Section 6AAA

1. If you had not pleaded guilty to this charge and been found guilty by a jury, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years.
2. Mr Younis, do you understand the sentence that I have imposed?
3. OFFENDER: Yes, Your Honour.
4. HER HONOUR: Are there any other matters I need to address?
5. COUNSEL: No, Your Honour.
6. HER HONOUR: I will ask if Mr Younis could be removed please. Adjourn the court.

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

[2] CCTV footage from a residential camera captured Mr Ziro driving fast about 450 metres prior to the intersection.

[3] Detective Senior Constable Robert Hay, Collision Reconstructionist, concluded that you were travelling at 92 kph and Mr Ziro was travelling at 82 kph at the time of the collision

[4] Mr Ziro's matter resolved on the same basis on 5 March 2021.

[5] Section 89 of the Sentencing Act 1991, the charges being 'serious motor vehicle offences' as defined by s.87P of that Act.

[6] Section 5(2H) of the Sentencing Act 1991. In your case the only possible exception being the existence of 'substantial and compelling circumstances that are exceptional and rare'.

[7] Section 5(2) of the Sentencing Act 1991.

[8] DPP v Lombardo [2022] VSCA 204 at [35] to [37], citing Georgiou v The Queen [2022] VSCA 172.

[9] DPP v Neethling [2009] VSCA 116 at [29], adopting an unreported 1997 NSW case of R v Musumeci.

[10] See Stephens v the Queen [2016] VSCA 121 at [20] and DPP v Neethling [2009] VSCA 116.

[11] You held a Probationary P2 drivers licence, Mr Ziro held a P1. See DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 475 [43].

[13] See Spanjol v The Queen [2016] VSCA 317, George v The Queen [2017] VSCA 152 and Arpaci v The Queen [2020] VSCA 81. Although not couching it in terms of offence gravity, those cases establish that the existence of an additional factor outside the control of an offender which was also a material cause of the death should ordinarily result in a reduction of penalty. Whether it is said to lessen the objective gravity of the offence or constitute a separate mitigating factor the effect is the same. See also Pan v The Queen [2020] VSCA 42, where an external factor, being an unsafe intersection, was held to reduce moral culpability.

[14] Stephens v The Queen [2016] VSCA 12 at [21] referring to DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483 which noted that except in cases of low moral culpability, such as momentary inattention or misjudgement, custodial sentences will usually be appropriate. Also DPP v Neethling [2009] VSCA 116; (2009) 22 VR 466, 472 at [29].

[15] Worboyes v The Queen [2021] VSCA 169 at [39].

[16] Worboyes v The Queen [2021] VSCA 169 at [39].

[17] Barbaro & Zirilli v The Queen [2012] VSCA 288 at [36].

[18] Section 5(2)(daa), (da) and (db).

[19] Previous good character (except absence of prior criminal history), early plea of guilty, prospects of rehabilitation and parity; s 5(2HC)(c).

[20] DPP v Lombardo [2022] VSCA 204 [63] to [72].

[21] DPP v Lombardo [2022] VSCA 204 at [104].

[22] That is, in making that determination general deterrence and denunciation must be regarded as of paramount importance, less weight given to personal circumstances, other mitigating factors disregarded, and Parliament's intention be considered.

[23] DPP v Neethling [2009] VSCA 116 at [55].