DPP v Ziro [2021] VCC 1187

3 As I have already said you were not the only young man driving irresponsibly at that time and in that location. Just as you entered the intersection so did the other young man, Marvin Younis, from Aitken Road on your right. Mr Younis was 25 and is yet to be dealt with by the courts. Simply put he entered the intersection against a red light and at speed. Specifically, the light had been red for two seconds and he was travelling at 92 kph in a 60 zone. Like you, he had been out socialising and drinking with friends; three of whom were in his car, a Mitsubishi Lancer.

4 Your car slammed into his car, which was also travelling straight ahead, causing lethal injuries to his front seat passenger, 20-year-old Jack Baho, who died at the scene. The force of the impact is graphically revealed by the scene photographs showing extensive damage to the two cars which were propelled across the intersection.

5 All other survivors, including you and Mr Younis were conveyed to hospital after the collision. Fortunately, no one else was seriously injured. You suffered no physical injuries but were in pain. A blood sample taken from you at 3:35 am returned a blood alcohol content of 0.046 per cent. Mr Younis and the others sustained minor injuries, the worst being your passenger who could not work for a month. A blood sample taken from Mr Younis at 4:45 am was negative for alcohol or drugs.

6 On 21 December 2018, you attended Craigieburn police station upon request. You were arrested and interviewed but answered 'no comment' to all questions and were released without charge. On 13 October 2019 you were charged with culpable driving causing death, drive in manner dangerous causing death, and reckless conduct endanger life.

7 On 23 November 2020 you were committed for trial to this court on all charges following a contested committal. On 5 March 2021 the matter resolved to a single charge of Dangerous Driving Causing Death contrary to s.319(1) of the Crimes Act 1958 and on 9 March 2021 you pleaded guilty to that charge at a directions hearing.

8 The offence carries a maximum penalty of 10 years and a mandatory loss of licence of at least 18 months.[2] 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.[3]

9 A plea on your behalf was conducted before me on 29 July 2021 and it now falls to me to sentence you for your conduct. The prosecutor, Ms Parkes, submitted that a term of imprisonment was appropriate and your counsel, Mr Ian Hill QC did not contend for the existence of any exceptions to the requirement that I impose one.

10 In arriving at an appropriate sentence, which in your case really means the length of the term of imprisonment, I am required by law to have regard to a variety of sometimes countervailing factors.[4] 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 one the weight it deserves in order to arrive at a just sentence.

11 It is not necessary to recite in detail the circumstances of the collision and subsequent investigation. They are outlined in the agreed Summary of Prosecution Opening.

12 Suffice to say that neither the weather, nor the condition of your car contributed to the collision.

13 Further, James Mirams Drive and Aitken Boulevard were sealed bitumen roads in good condition running in an approximate East-West and North-South direction respectively. They intersected at right angles. From your direction of travel James Mirams Drive had a single lane of traffic in each direction. At the mouth of the intersection, it had a left turn lane, a single lane going straight ahead and a right turn lane. The left turn lane was separated by a raised concrete island from the lane going straight ahead. The right turn lane was preceded by a painted island on the road surface and was marked by painted turn arrows on the road surface.

14 At the mouth of the intersection Aitken Boulevard had two lanes of traffic in each direction as well as a dedicated right turn lane.

15 The intersection was illuminated by overhead street lighting but the sweeping bend in James Mirams Drive on your approach would have obscured your view of the intersection and Aitken Boulevard from a distance. Closer to the intersection your view of Aitken Drive was hampered by a fence, a sign and mounded earth on your right, and a construction site and trees on your left.

Objective Gravity of your offending and moral culpability

16 Two factors of central importance in determining your sentence are the objective gravity of your offending and your moral culpability.

17 The offence of dangerous driving causing death 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 objective dangerousness of the driving and the driver's state of mind are relevant to offence gravity and moral culpability.[5] Further, the extent of the risk created, and the potential harm were that risk to materialise are relevant to the dangerousness of the driving.[6]

18 In your case it was agreed that the dangerousness comprised you:

1. entering the intersection via the right turn only lane when you intended to drive straight ahead;
2. driving at 82 kph in a 60 zone; and
3. approaching the intersection at speed and in the right turn only lane without slowing down even though the light facing you was red - the light only changing to green as you entered the intersection.

19 What you were thinking as you approached the intersection, is known only to you. However, clearly, you had no intention of stopping at the intersection no matter the colour of the lights and regardless of the traffic, let alone any ability to do so. You made a conscious and deliberate choice to do what you did. As such your driving falls into the intentional risk-taking end of the spectrum of conduct for this offence and your moral culpability is correspondingly high. Further, driving in that manner posed a considerable risk of serious harm to other road users, including your own passenger, albeit the magnitude of the risk at 2:00 am was less than at other times.

20 Mr Hill suggested that you might have known the light in your direction was about to turn green. As you gave no evidence before me and no explanation to the police, I am not satisfied that was in fact your belief, but even if it was, your conduct would still have been extremely reckless.

21 Whilst your conduct was reprehensible, I am conscious that the substance of the offence of dangerous driving causing death is not just the dangerousness of the driving, but that dangerousness in association with the taking of human life. In that regard there is one matter which does reduce the seriousness of your offending and that is the fact that you were not solely responsible for the death of Jack Baho.[7] It took another young man to simultaneously flout the law to bring about that tragic consequence. If Mr Younis had not sped through the intersection against a red light, your driving would have been just as dangerous and your behaviour just as reprehensible, but no-one would have died. Since he did do that and thereby materially contributed to the death of his own passenger, the sentence I impose on you should be reduced.[8]

22 To be clear, whilst the independent actions of Mr Younis reduce the objective gravity of your crime, they do not reduce your moral culpability. This is because what he did had no influence on you whatsoever. You drove in the way you did completely of your own accord. You alone are responsible for that.

23 Not only did you choose to drive as you did, you chose to drive in that way with alcohol on board. The fact it cannot be proved that alcohol played a part in your driving means it is not a matter relevant to the gravity of your offending, but it is very relevant to your moral culpability. You knew it was illegal to have any alcohol in your system whatsoever. You could not have known whether your consumption of alcohol was likely to impair your driving or decision making in any way. As a young inexperienced probationary driver, you should have been vigilant to ensure you obeyed the law and did nothing which might have jeopardised your ability to drive safely. You owed it to your own passenger as well as all other road users. Your drinking on this night not only demonstrates your willingness to disobey the law, it is a further illustration of your disregard for the safety of others.

24 Although I assess your moral culpability as high, I accept that your youth and immaturity lessens it somewhat. The law recognises that young people, as you were at age 18, are more prone to make ill-considered decisions and may not fully appreciate the seriousness or consequences of their conduct. Unfortunately, it is those same young people, overconfident and feeling themselves invincible, who often get behind the wheel of a car and drive dangerously. I will return to the significance of your youth later in these reasons.

25 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.

26 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. First, in March 2008 the maximum penalty was increased from five to ten years. Then in 2016, it became subject to a form of mandatory sentencing whereby offenders had to receive non combination custodial sentences unless certain exceptions existed. Finally, on 28 October 2018, the exceptions were tightened making it even harder to avoid a custodial sentence. Significantly, the words 'that are exceptional and rare' were introduced into the substantial and compelling circumstances exception and there were constraints placed upon the way in which that issue could be determined. As I have already said Mr Hill did not argue that there were any such exceptional circumstances in your case.

27 Even before the introduction of the mandatory sentencing scheme our Court of Appeal made it clear that except in cases of low moral culpability the offence of dangerous driving causing death should attract a custodial sentence and usually a significant term.[9] In 2016 the same court determined that courts were, in essence, sentencing too leniently for this offence.[10]

28 Any consideration of sentencing practices must take into account both the various legislative changes and Court of Appeal pronouncements.

29 The most recent Sentencing Advisory Council Statistics of the higher courts (June 2020) indicate that roughly 50 per cent of people sentenced on a charge of dangerous driving causing death between 1 July 2015 and 30 June 2020 received an immediate term of imprisonment ranging from a number of months to seven years, with two to three years being the most common sentence.[11]

30 Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases. Whilst such sentences are not binding precedents to be applied or distinguished, they are a guide or yardstick against which to measure any sentence I propose in this case. There is never only one single correct sentence.

31 I have considered all the cases involving dangerous driving causing death to which I was helpfully referred by your counsel and the prosecutor, both County Court and Court of Appeal decisions. There is no need to recite the facts or sentences of all those cases. Suffice to say some involved deliberate risk-taking behaviour and others inattention of varying degrees and type. As could be expected no case was exactly on par to yours, although a number did involve reckless behaviour by young men. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

32 You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a relatively early stage. Whilst there was a contested committal, you were then charged with a more serious offence. The prosecutor accepted that the cross-examination at committal had a legitimate forensic purpose in refining the case against you and indeed the case was settled on a less serious basis.

33 In pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. Our Court of Appeal has recently reinforced the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[12]

34 Your counsel submitted that you had exhibited genuine and heartfelt remorse and relied upon the various character references tendered on your behalf. Of course, 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.[13]

35 Whilst you have described feelings of shame and guilt, the overall impression conveyed by your various character references and your treating psychologist's report is that you are more concerned about the impact of your actions on yourself and your family than the victim's family. Further, it is not clear to me from those documents that you truly accept that you caused the death of an innocent person, as opposed to him dying from a 'tragic accident'. It is also notable that less than four months after your offending you were intercepted by police for travelling more than 20 kph over the speed limit on Aitken Drive at night and in the vicinity of the collision. Mr Hill submitted that you were clearly not in a good frame of mind at that point. Nevertheless, that incident militates against a finding of remorse, at least at that time. If you were genuinely remorseful, I would have expected you to be exceedingly cautious any time you were driving near the scene.

36 I have no doubt you that you are sorry for what happened and the pain you have caused your family; however, I am not persuaded that you fully appreciate your role in Mr Baho's death.

37 Your background and personal circumstances were outlined in the plea submissions tendered on your behalf.

38 Very briefly, you were born in Australia, two years after your parents emigrated here from Greece, having arrived there as refuges from Iraq. You are the middle child of five siblings, with two younger sisters, and an older sister and brother. Your family is described as 'tight-knit'. You work in the family windscreen fitting/repair business alongside your father and brother.

39 Your family and Mr Baho's family - by chance - are part of the same local community and this has heightened your and your family's exposure to the fallout from that night. I do not understand a suggestion that you have been bullied and abused by Mr Baho's family and friends to be maintained in light of the prosecutor's objection. Nevertheless, I accept that it has been difficult for you and your family in your community.

40 Prior to the collision you were studying a Bachelor of Building and Construction at university, but you have since given it up. You are an excellent soccer player and over the years have mentored and coached younger players on a voluntary basis. You threw yourself into the sport after your offending, competing at the highest level in the state and being appointed team captain. Two coaches and a club official have spoken of your prowess, dedication and selflessness in their character references.

41 Since the collision you have also found comfort in your faith, becoming more involved in the church community, attending church regularly and assisting with ministry work and volunteer duties. You attend weekly out-reach sessions in the Melbourne CBD, feeding those less-fortunate. In his character reference, Father Mina George of the Our Lady of Perpetual Help says that you have 'never missed a week' of the outreach sessions, and that you have inspired other young people within the church by your commitment to community work.

42 A report authored by consultant psychologist Heidi Lecluse dated 27 July 2021 was tendered on your behalf. You commenced seeing Ms Lecluse in February 2020 at the suggestion of Father George and pursuant to a Medicare Mental Health Care plan provided by your GP. You had a total of 22 consultations with Ms Lecluse up until the date of her report.

43 I accept Ms Lecluse's opinion that the collision has had a significant psychological effect upon you. She noted that you reported feelings of shame, suicidal ideation, and crippling guilt in the aftermath of the collision. The various tests she administered in 2020 indicated you were suffering from Generalised Anxiety Disorder (GAD), Sleep Disorder, and PTSD, all directly related to the collision. She said you responded well to therapy and your anxiety, sleep and depression all improved during therapy and concurrently with increased soccer training. At reassessment in 2021, she diagnosed you with mild-moderate GAD, single-episode mild Depression Disorder, severe PTSD, Sleep Disorder (currently dormant), and Adjustment Disorder - deferred- PTSD.

44 Your various character references are also testament to how much this event has taken its toll on you. Father Mina George described you suffering damage to your reputation in the community and at times withdrawing from your family and friends. Your sister Angela said she was disheartened to see you withdraw from your family and lose your drive and motivation after the collision. She, like others, also noted that during the period between the collision and now, you have worked hard to turn yourself around, throwing yourself into your soccer, religion, and community work.

Impact of your offending and circumstances of your victims

45 Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[14]

46 No victim impact statement has been tendered. However, Mr Baho's family have conveyed through the prosecutor that your offending has had a 'profound and enduring impact on them'. Your actions on that night took away from them a much-loved son and brother with his whole life ahead of him. It does not take much imagination to appreciate their suffering.

47 Turning to your character and risk of reoffending.

48 You have no prior convictions and only the one subsequent traffic infringement notice. Your six character references speak of your respectful, generous nature and your ability to show leadership. They explain your efforts to rebuild your reputation after your offending and to make yourself a better person. Similarly, Ms Lecluse describes your commitment to becoming the best version of yourself. It is in your favour that you took it upon yourself to see Ms Lecluse and to redeem yourself within your community.

49 Your subsequent traffic infringement notice is of concern not only because it casts doubt on your remorse, but because it is further evidence of an attitude of disobedience to the law. However, there has at least been nothing since then and that is a period of over two years.

50 At 21 you are still a young man. You have a lot of support from your family and others and are a talented sportsman. I accept that this event has had a salutary effect on you, and I consider that overall your prospects are very good.

51 I turn to the question of delay. There has been a delay of almost 33 months between offending and sentencing. Although you were interviewed promptly you were not charged for over ten months. The reason for this delay has not been explained. Thereafter followed a COVID related delay in your contested committal and two directions hearings in this court before the matter resolved on 5 March 2021. I am informed you did not make a prior offer to plead guilty to the dangerous driving causing death.

52 The significance of the delay is twofold. The first is that you have had the worry of this matter, particularly as you were charged with culpable driving, hanging over your head for all that time. The second is that as at 25 March 2021 (your 21st birthday) you were no longer eligible to be sentenced to a term of detention in a Youth Justice Centre. I take into account both these matters in mitigation. I regard the loss of opportunity of you receiving a Youth justice Centre Order as particularly significant as it would have been a realistic option in this case given that the maximum period of detention is four years. Instead, you will face a more onerous sentence in an adult prison with all the attendant risks to your rehabilitation.

53 There was some discussion during the plea about whether you should get the full benefit of the delay given that pleas of guilty were being listed promptly in the County Court during the pandemic. In that regard I simply note I would have given you an even bigger discount had the same delay occurred in circumstances where you had made admissions in your interview and/or made an earlier offer to plead guilty to dangerous driving causing death.

54 In determining the appropriate sentence I must consider how a term of imprisonment would be likely to impact you.

55 I take into account that you are a young man of 21 with absolutely no prior involvement in the criminal justice system facing a term of imprisonment in an adult prison.

56 Although the well-known case of Verdins has not been relied upon, I also take into account Ms Lecluse's opinion that your PTSD is likely to be exacerbated by your incarceration and that ideally you would have received ongoing psychological treatment and monitoring for between two to five years, something which may not be available in prison.

57 Finally, although this is not peculiar to you, you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. The worry of contracting the virus in prison, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens. You will also have to undergo 14 days of quarantine upon your entry into prison.

58 In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to 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.

59 The importance of general deterrence and denunciation in sentencing for offences such as yours has been repeatedly emphasised by the courts and is 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.[15] Members of the community must understand that if they drive dangerously, especially intentionally, with consequent loss of life or serious injury, significant punishment will follow. 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.

60 I do not consider there is a significant need for my sentence to specifically deter you from doing anything similar again or to protect the community from you given my assessment of your future prospects.

61 Your potential rehabilitation is also something to which I must have regard. The law recognises the paramount importance of promoting the rehabilitation of young offenders, such as you. Not only is this because young people have the greatest potential to rehabilitate, but also because it is by their rehabilitation that society will be best protected. It is also generally acknowledged that a period of incarceration in an adult prison will most likely have a detrimental effect on a young person's prospects of rehabilitation.

62 However, it also settled law that the importance of rehabilitation in the sentencing equation declines as the seriousness of the offending increases and dangerous driving resulting in the death of an innocent person is very serious. Further, the sad fact is that serious driving offences are often committed by young people, and it is they who most need deterrence. As was stated 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'.[16]

63 Accordingly, whilst I do take into account your youth and the need to avoid a sentence which crushes your prospects of rehabilitation,[17] it does not displace the primacy in the sentencing equation of general deterrence.

64 Of course, I must also take into account the mitigating factors I have already outlined in detail. There are three factors of particular significance in your case which mean the sentence I impose will be considerably less than it would otherwise be having regard to the dangerousness of your driving and your high moral culpability and they are: (1), that there was an additional material cause of the death of Mr Baho outside of your control, being Mr Younis's driving; (2), the significant delay which has put a Youth Justice Centre Order out of your reach; and (3), your plea of guilty during the pandemic.

65 Weighing all the competing considerations as best I can I sentence you as follows. Please stand, Mr Ziro.

66 I convict and sentence you on Charge 1 to a term of imprisonment of two years and two months, so that is 26 months. I set a non-parole period of 14 months. That non-parole period is the earliest time at which you can be released. It does not mean you necessarily will be released after 14 months; it is up to the Adult Parole Board as to when you will be released.

67 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 I consider it appropriate to exceed that minimum. I cancel and disqualify you from driving for two years effective from today.

Section 6AAA

69 If you had not pleaded guilty to these charges and then 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.

70 So Mr Ziro, do you understand the sentence I have imposed?

72 HER HONOUR: Are there any other matters that counsel wish to raise with me before I adjourn the matter?

75 HER HONOUR: All right, thank you. I will adjourn the court. And I will allow

Mr Ziro just to say goodbye to - I think it is his father, is that correct?

[1] CCTV footage from a residential camera captured you driving fast about 450 metres prior to the intersection.

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

[3] 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'.

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

[5] DPP v Neethling [2009] VSCA 116.

[6] Stephens v the Queen [2016] VSCA 121 at [20].

[8] 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.

[9] Stephens v The Queen [2016] VSCA 121; and DPP v Oates [2007] VSCA 59; (2007) 47 MVR 483.

[10] Stephens v The Queen [2016] VSCA 121 although dealing with mid range offences.

[11] A community corrections order was the next most frequent sentence imposed at 43.8%.

[12] For example Worboyes v The Queen [2021] VSCA 169 at [39].

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

[14] Sections 5(2)(daa), (da) and (db) of the Sentencing Act 1991.

[15] 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.

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

[17] Arpaci v The Queen [2020] VSCA 81 at [273].