R v Sharif [2020] VSC 226

2 The maximum penalty for manslaughter is imprisonment for 20 years.

3 Manslaughter is a category 2 offence under s 3(1) of the Sentencing Act 1991 ('the Act'). This means that pursuant to s 5(2H) of the Act, in sentencing you I am required to impose a sentence of imprisonment upon you in the absence of the application of one of the exceptions contained in parts (a) to (e) of that subsection. It has not been submitted on behalf of you that I should do anything other than impose a term of imprisonment and set a non-parole period.

4 The events which occurred in Castley Crescent that night were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook in which Mr Duncanson was assaulted by a group of men associated with you. Mr Duncanson was struck to the face by one or more of the men, and was then surrounded by them in a threatening manner, as witnessed by the householder Sally Roach. The injured Mr Duncanson went to his nearby home after this event, and being aggrieved at his treatment by the men, then went out on foot in an apparent quest to find those responsible for the attack upon him. He was accompanied by his brother Sean. In spite of Sean Duncanson's denial of the fact, the overall evidence indicates that one or both of the Duncanson brothers were armed with weapons at the time.

5 I make it clear that in sentencing you, I have had regard to this lead-up event only insofar as it explains what subsequently occurred. You are not said to have been involved in that lead-up event as I understand it, and you are not to be punished for any involvement.

6 The evidence indicates that when the Duncanson brothers encountered your Hyundai vehicle immediately before the events in Castley Crescent, you were the driver of the vehicle. Your brother Abdifatah Sharif ('Abdifatah'), Dawuud Abdi ('Abdi'), Salah Abukar ('Abukar'), and Yasir Duale were present as passengers in the vehicle.

7 Sean Duncanson gave evidence in your trial that when he and his brother were walking along Castley Crescent, a vehicle drove slowly past and Paul recognised some of the occupants as those with whom he had had the earlier run-in. He then described a cat-and-mouse situation in which the vehicle would slow down and then speed up as the brothers pursued it.[1] He stated that he and his brother caught up with the vehicle and then punched the windows of the car as the car moved slowly along. A number of windows were broken. Sean Duncanson denied that either he or his brother had a weapon.

8 A friend of you and the others in the car, Abdiqani Mohamed ('Abdiqani'), gave evidence that he was riding his push bike north along Castley Crescent having earlier been at number 12 in that street. He said that his friends in a Hyundai vehicle drove past him heading north. At about that time, he heard some yelling coming from behind him and then saw two men running towards him with weapons held in the air. He claimed that he thought the men might attack him. He tried to pedal away and fell from his bike onto the roadway, injuring his knee. He then saw the men above him, and could now see the weapons were a machete and a metal pole or similar. Thinking they may strike him, he said that he was not with the other men in the car. The two men left him alone, continuing to run north in Castley Crescent.

9 Abdiqani told the Court that he then heard the sound of smashing glass and screaming, and faintly saw some figures moving around in the distance. He rode his bike further to the north and then saw some figures fighting on the side of the road. The next thing her remembered was being in the back of the Hyundai vehicle and being driven away from the scene.

10 As indicated already, the Duncanson brothers somehow managed to catch up with your vehicle. Having done so, they set upon it. I am satisfied on the balance of probabilities that one or both of them were, indeed, armed with weapons, as was strongly asserted on your behalf by Mr Doyle. In my view, Mr Doyle mounted a compelling case in favour of my reaching that conclusion.

11 Weapons and possibly fists as well were then used to smash a number of windows of the vehicle including the rear windscreen, showering some of the occupants of the vehicle including you with glass. It is possible that one of the rear seat passengers was actually struck by a weapon during the course of the attack.

12 After the vehicle had been damaged in this fashion, you drove some distance to the north, in the direction of Ballarat Road, taking the vehicle away from the attackers. You then stopped the vehicle, reversed into a driveway on the western side of the road, and completed a turn to have you facing again to the south. At about the point of the turn, one or more of the occupants of the vehicle departed the vehicle.

13 Jose Munoz, who lived in 39 Castley Crescent, had his attention drawn to events in the street by his son. He proceeded to the front yard of his house and observed proceedings from there. As it turned out, he may have been the only eye witness to your collision with Paul Duncanson. Mr Munoz observed your vehicle proceeding north towards his property and saw some people hit the vehicle, making a noise. He observed you do a turn which involved you backing into a driveway opposite his address. He then saw your vehicle leave the driveway and accelerate 'with a lot of speed' to the south along Castley Crescent. He described four people walking down the middle of the street, also heading to the south. As the vehicle accelerated towards these people, those on the extreme left and right, being apparently aware of your approach, moved out of the way. The two people in the middle, who were in the middle of the road at the time, were struck by the vehicle, so he said. The man on the left, that is, on the eastern side, was thrown into the air. On the prosecution case, and this was accepted on your behalf, that person was Paul Duncanson. The other man was thrown into a car on the right of the road. Mr Doyle disputed that this other person, apparently Sean Duncanson, was actually struck by the car. When asked the speed of the vehicle at the point of impact, Mr Munoz said, 'Maybe 50, 60 km an hour'.[2]

14 As I understand it, save for the fact that it was disputed on your behalf that Sean Duncanson was struck by your car, and you challenged Mr Munoz's estimate of the speed of your vehicle, his account of witnessing the event in which your vehicle collided with Paul Duncanson is not disputed. I sentence you on the basis that when you commenced to drive your vehicle back to the south having turned it around, there were a number of people on the roadway ahead of you, including the Duncanson brothers, your brother Abdifatah and Abdi.

15 You then accelerated heavily over a short distance in circumstances where, to your mind, there would likely be pedestrians in front of your vehicle. Your vehicle struck Paul Duncanson with sufficient force to send him flying into the air as witnessed by Mr Munoz. Paul Duncanson landed on the roadway in a severely injured state. He had sustained mortal injuries in your collision with him.

16 After Paul Duncanson had been struck by your vehicle, you drove further to the south before turning the vehicle around again. You then drove a short distance to the north before parking on an angle on the nature strip adjacent to number 33 Castley Crescent.

17 The evidence would indicate that Abdifatah, Abdi, and Abukar, set upon Sean Duncanson, inflicting serious injuries upon him. Paul Duncanson was also further attacked with the use of weapons. You are not to be sentenced in respect of either of those attacks. You did alight from your vehicle at the location of these attacks, but I sentence you on the basis that you did no more than shepherd your associates back into the vehicle.

18 You then drove away from the scene, making no attempt to assist either of the injured men or to notify the police of what had occurred.

19 You drove your vehicle to a location in St Albans and then abandoned it after removing the number plates and any items in the vehicle linking you to the vehicle. You later disposed of the number plates and your car keys. You and your colleagues were picked up from St Albans by a friend Waleed Mahmoud and driven away. In the ensuing days, there were meetings and discussions between you and the others which also involved your brother Mustafa.

20 It seems that in the days following the events, as you, Abdifatah, Abdi and Abukar discussed your respective versions of events, all of you contemplated handing yourselves in to the police. In due course, all four of you were arrested and interviewed.

21 The scene in Castley Crescent after your departure was a distressing one. After Paul Duncanson had been struck by your vehicle and then further attacked, he staggered across the road and sought refuge in the front yard of 32A where he was shortly thereafter located by a number of people including Sally Roach. He was covered in blood and having difficulty breathing. He was assisted across the street by Roach to the front of 33 Castley Crescent where Sean Duncanson was lying on the nature strip with serious injuries. Both of the Duncanson brothers were assisted into the driveway of number 33. Emergency services were contacted.

22 A number of ambulances arrived promptly. Paul Duncanson received immediate medical care in view of his obviously serious injuries. He was transported to Royal Melbourne Hospital. He was unable to be resuscitated and died as a result of his injuries.

23 An autopsy was carried out on Paul Duncanson by Dr Malcolm Dodd on Sunday 10 December 2017. He was found to have the following injuries:

• Multiple abrasions and lacerations over his head and body;

• Acute internal blood loss (in excess of 2.5 litres of intra-abdominal blood);

• Subcutaneous emphysema involving the chest and lower neck regions;

24 Dr Dodd determined that the immediate cause of Mr Duncanson's death was hypovolaemic shock due to internal blood loss secondary to extensive injuries sustained after a motor vehicle impact. A right sided rib fracture complex had caused haemorrhage into the right hemidiaphragm and also an extensive laceration of the right lobe of the liver. This led to extensive internal blood loss which culminated in hypovolaemic shock and cardiac arrest.

25 Mustafa Sharif, one of your brothers, gave evidence in the trial about conversations he had with you and others in the days following the events. The tenor of his evidence was that in these conversations, all of those to whom he spoke gave similar accounts about the events in question.

26 He spoke to Abdifatah on the Sunday. When he spoke to you on the Monday, you gave him a similar account to that which Abdifatah had provided. You said that the Duncanson brothers had pulled Abdiqani from his bike and it was after that that the the two Duncanson brothers had smashed the windows of your vehicle and some glass had gone into your eyes and caused cuts to your head. In addition, someone had thrown a brick on the windscreen. Everything went quickly. When you were driving back to collect Abdiqani, one of the Duncansons ran onto the road. You did not see him and accidentally ran over him in your haste to get to Abdiqani.

27 You were arrested by police and interviewed on 12 December 2017. During the interview, you denied, for the majority of the interview, the fact of the earlier visit to 237 Ballarat Road, Braybrook, the assault upon Paul Duncanson there, and the presence of your vehicle behind the flats just along from that address at 233 Ballarat Road. Later, when confronted with the CCTV footage from the flats, you admitted being there, but for a time refused to identify some of those visible on the footage. In relation to the main events, you admitted being the driver of your vehicle in Castley Crescent and having the others in the vehicle. You were heading north. You said you saw two men walking on the footpath in a southerly direction. You said that they may or may not have had something in their hands, but later in the interview, you claimed that they did have weapons. Abdiqani was on the road on his bike. All of a sudden, you heard a loud bang as your car windows were smashed, and everything went 'dizzy' and became 'blurred'. You described this attack upon your car as an 'act of terror'. You said you put your 'pedal to the metal', driving off quickly, escaping a 'scene' and leaving Abdiqani. You claimed your brother Abdifatah told you that you had to go back for Abdiqani, who was apparently lying on the road. You decided that you could not leave him. You braked and Abdifatah got out of the vehicle. You later said that Abdi and Abukar also got out, the latter falling on the ground as he did so. You did a U-turn to go back for Abdiqani and Abdifatah, with just Yasir Duale still in the car with you. You stopped next to Abdiqani and then jumped out and pulled the two of them into the car. Then you did another U-turn and proceeded north to Ballarat Road where you turned left, eventually making your way to St Albans where you were collected by Waleed Mahmoud whom you had telephoned and asked to collect you. You removed your belongings from the car and removed and disposed of the number plates. You said that over the weekend you and the others did a bit of talking. On the Sunday, you claimed that you found out that somebody had died, having been 'run over or something'. Well into the interview, you were asked whether you had a collision with anything while you were driving. You said that to the best of your knowledge, Abdifatah ended up under your car at one point, but said nothing about having struck Paul Duncanson. In fact, you denied having hit anyone else. You later conceded that it was possible another person was 'under' your car. In a portion of the interview after a break, you provided more detail about the events in Castley Crescent. You said that after the others had gotten out of your car, you saw Abdifatah and Abdi close to Paul Duncanson. You claimed Abdi was running away from Paul Duncanson. You 'popped that three turn', as you put it, and there were people in front of you. You drove another five seconds before stopping again, which was when you saw your brother under the car. Then, at question 1368 of the interview, for the first time, you mentioned having hit Paul Duncanson. As you put it, 'I may have accidentally hit someone or something. Straight up, I may have accidentally, straight up, the gentleman who was assaulted out the front of Tony's home...may have been hit by my car...I'm driving, then I hit that gentleman, straight up, with the white jumper, he was next to Dawuud. That gentleman fell down, you know what I mean, he fell down'. You said that after this, you saw Paul Duncanson on his knees with a person close to him, holding his hand. You got out of the car to get the others back in, and then drove off. When asked how fast you were travelling when the vehicle hit Paul Duncanson, you said, 'At most, 20, I believe'. Later you said maybe 25 km/h. You said that you had only travelled three to five metres before you hit him. It was the front left side of the car which struck him. You felt a little bump and he 'went to the side'. When asked if you applied your brakes before hitting him, you said you tried to do so. You continued driving, however, after you hit him. You denied having deliberately struck Paul Duncanson with your car. When asked if you could have avoided hitting him, you said, 'Straight up, possibly not. Or possibly. I could've completely braked as soon as I saw Salah on the ground and I put it on drive'. When asked why you did not do so, you said, 'An attempt to maybe get away. Or something, a second attempt to escape for myself'. When asked at what point you had seen Paul Duncanson before the collision, you said, 'The last second, just a flash of white'. When asked if you tried to help Paul Duncanson, you said, 'I did not try to approach him at any cost...These are the same people that I'm trying to get away from, myself right now. That was the same feeling throughout the whole incident, the feeling to get away'. In relation to abandoning your car and removing your possessions from it, you said it was your decision to do so, saying, 'That's when we pretty much notice myself that, yep, definitely going to be in trouble for this, it's gunna follow up and all that'.

28 Your plea of guilty to manslaughter was entered and accepted on the basis that you did not target or deliberately run over Paul Duncanson. Rather, your criminality was to be found in the fact that in circumstances where there were a number of people on the roadway in front of you, and you were aware of that likelihood, you deliberately and rapidly accelerated along the road in the direction of the pedestrians, failing to take reasonable care to ensure the safety of the pedestrians.

29 My Doyle submitted that your driving in question only occurred over a small distance of the order of 20 metres. In respect of the speed that you reached, he disputed the evidence of Mr Munoz as to his estimate of your speed as between 50 and 60 km/h. He submitted that I would not be in a position to make a finding beyond reasonable doubt of a speed in excess of 30 km/h, the speed which Dr Dodd had given as a minimum speed to have brought about the catastrophic injuries seen in Paul Duncanson. That said, as he acknowledged, what mattered was that the speed was fast enough to kill someone. He also did not dispute that the speed was sufficient to throw Paul Duncanson into the air as witnessed by Mr Munoz.

30 In respect of the extent or degree of your acceleration over the short distance, Mr Doyle acknowledged that it must have been 'heavy'.

31 In respect of the immediate lead-up to your crime, Mr Doyle submitted that I should be satisfied on the balance of probabilities that the Duncanson brothers were armed with weapons at the time the windows of your vehicle were broken.

32 Mr Doyle described the attack launched upon the car as both frightening and disorienting, and invited me to assess your culpability on the basis that you may not have been thinking straight at a time immediately after such an experience. Your errors of judgment, criminally negligent though they were, are more understandable in light of the level of fear and panic that you would have been experiencing, he submitted.

33 He further urged me to make a finding of fact on the balance of probabilities that the reason why you stopped the car and turned it around before heading to the south was because of the perceived danger to Abdiqani which had been brought to your attention by Abdifatah. You did not turn the car around with any aggressive intent at all. You were trying to leave the scene with your friends, he submitted, and the only way you could do that was to drive back south in the direction they were. You did that, admittedly, far too quickly, submitted Mr Doyle.

34 As indicated above, Mr Doyle disputed that your vehicle struck Sean Duncanson, but he did accept on your behalf that there were multiple pedestrians in front of your vehicle as you accelerated to the south, and that at least the Duncansons, Abdifatah and Abdi were placed in danger by your actions.

35 Mr Doyle described the situation that prevailed just before the collision as a highly dynamic one in which, amongst other things, as asserted by you in your interview, Paul Duncanson was chasing Abdi. This was not a situation where pedestrians were stationary in front of you. Rather, the pedestrians were 'moving constantly, were in a dark street, and were likely to have been obscured at times by parked cars'.

36 In respect of your having, so you claimed, run over your brother Abdifatah, Mr Doyle submitted this showed 'just how chaotic this scene was' and how your behaviour was influenced by your panicked state. He submitted, however, that the running over of your brother occurred at a different time, slightly after, the collision with Paul Duncanson.

37 Mr Doyle submitted that an assessment of your degree of culpability is to be informed by:

a) the understandable influence of fear and panic on your conduct;

b) the influence of your passengers in insisting that you stop the vehicle, and in beginning to get out of it before you had stopped;

c) the very short distance over which you drove before colliding with Paul Duncanson;

e) the absence of evidence that you were intoxicated or exceeding the speed limit; and

f) the absence of evidence of conscious or deliberate risk-taking in your driving.

38 Mr Doyle took me to a number of cases concerning sentences imposed for manslaughter brought about through the use of a motor car as a weapon. Some of these were cases of unlawful and dangerous act manslaughter. Others were cases of negligent manslaughter. Mr Doyle put your moral culpability at a level below that of the offenders in those cases.

39 In all of the circumstances, Mr Doyle submitted that this was a manslaughter at the lower end of the spectrum of seriousness. He further submitted that the offence was at the lower end of the spectrum in terms of offences of negligent manslaughter, and in terms of offences of manslaughter where the mechanism of death is running over a person with a motor vehicle.

40 Many of the contentions of your counsel as to the gist of the offending, the lack of aggressive intent, and the distance, speed and time involved in the relevant episode of driving, were not challenged by Ms Karamicov for the Crown. She submitted, however, that whilst the offending was of short duration, what occurred was catastrophic, resulting in the loss of Paul Duncanson's life, and whatever the speed was, it was sufficient to cause fatal injuries. Important in assessing moral culpability was the fact that at no time did you lose control of the vehicle, unlike the factual positions in some of the cases to which Mr Doyle took the Court. Insofar as there was provocation, the extent to which that could reduce moral culpability needed to be assessed in light of other important factors. These included the fact that once you had turned your vehicle around to face to the south, whatever fear may have existed in your mind for the safety of Abdiqani would have passed because the Duncansons were in front of your vehicle, and nowhere near Abdiqani. You made a conscious decision to drive to the south towards the pedestrians. Ms Karamicov submitted that the careful use of a motor vehicle is an absolute requirement of every driver. You failed in that regard. She disputed that your moral culpability was as low as was asserted by Mr Doyle.

Findings as to the nature and gravity of your offence

41 I am satisfied on the balance of probabilities that at least one, if not both of the Duncanson brothers were armed at the time of the attack upon your vehicle, and accept that the attack on the vehicle in the circumstances was an unexpected and frightening event which may have caused fear and confusion to you. As to your reasons for stopping your vehicle, turning it around, and proceeding to the south in the lead-up to the collisions, things are not so clear.

42 In urging me to make a finding of fact on the balance of probabilities that the reason why you stopped the car and turned it around before heading to the south was because of the perceived danger to Abdiqani which had been brought to your attention by Abdifatah, Mr Doyle relied strongly not only upon the account which you gave in the police interview, but upon the account given to the police by Abdifatah. That is not to say that there were not other aspects of the evidence upon which he also placed reliance, but to my mind, proof of your state of mind at the particular time was dependent on an acceptance of the account you gave, supported by Abdifatah's account.

43 Mr Doyle submitted, and I accept, that I am entitled to act upon the account given by Abdifatah, albeit that it was not in your presence, and would not have been admissible against you in the trial had you not provided your consent pursuant to s 83(2) of the Evidence Act 2008. This being a proceeding relating to sentence, the exclusionary provisions in respect of this account of a third party would not have applied in any event.[3] I would be entitled to act upon the account given by Abdifatah. That does not mean, however, that I should be willing to do so.

44 In respect of the accounts given to the police by you and Abdifatah, I note that both of you avoided speaking to the police in the days following the events. You and all of the others involved in the events in Castley Crescent had ample opportunity over those days to discuss the events and what you would say about them. The evidence of Mustafa made it clear that you did precisely that, and that the accounts given by all of you, and certainly by you and your brother Abdifatah, had a uniform sound to them.

45 I can indicate that in light of your strong reliance on the account of Abdifatah during the plea, I have re-read the transcript of his interview. I can also indicate that at the time of the trial, I viewed that interview, and the interviews of all other accused, including your own, more than once.

46 The account of Abdifatah given to the police was, to my mind, a wholly unimpressive one. His opening gambit, when asked what he could tell the police about the events, was to ask them what they could tell him. He refused to tell them who had been present at the scene of the events, instead asking them to tell him who they knew was there. He provided no comment answers when it suited him, and was evasive in response to clear police questions. He denied any knowledge of the earlier event in which Paul Duncanson was assaulted at 237 Ballarat Road, Braybrook. When asked to tell the police about the incident from start to finish, he stated simply that he was innocent and that he had acted in self-defence. He claimed that his friend on the bike, whom he did not name, did not fall off, but rather, had something thrown at him. He described the Duncansons standing over Abdiqani, and stated that he thought they hit him, and that he, Abdifatah, thought he was dead. Whilst he did describe damage having been inflicted upon the car, he stated that he had 'no clue why they want (sic) to attack us'. He claimed that when he exited the vehicle, it was because he got pulled out of it or alternatively, because he fell out of it. He then claimed that he was attacked outside the vehicle, and did nothing other than to defend himself with a Gucci bag. He claimed to have gotten out of the vehicle because he was disoriented and shocked, and was trying to escape. A little later he claimed that he got out to help and collect his friend. He was at pains to pronounce that all of his friends who were at the scene were innocent and had acted in self-defence, and that they had been attacked for no reason. In an interview which proceeded for some 924 questions, Abdifatah gave no explanation at all as to how it transpired that one of the Duncanson brothers had been killed and one sustained serious injury. As to what happened to the two men, he said, 'I can't really say'. When asked specifically what happened to Sean Duncanson, he said, 'Have you guys interviewed him?..I don't know. I never seen it.'

47 In my opinion, the account given by Abdifatah was entirely unsatisfactory and very dishonest. I would be very slow to rely on anything he had to say about a factual matter surrounding the events in question.

48 As I think is clearly revealed by my summary of your police interview given earlier in this sentence, your account given to the police was similarly unimpressive. That summary reveals your evasiveness and dishonesty for large parts of the interview. It is apparent that your answers in the lengthy interview fell far short of being a fully frank and truthful account. You spent a large portion of the interview denying having struck any pedestrian. When you eventually acknowledged having run over Paul Duncanson, you did so in a way that did not accord with the truth. You down played the distance you had travelled, the speed at which you had struck him, and the force of the collision. You pretended to be uncertain about whether it had even occurred. I do not believe you told the truth about the events. Therefore, there would be every reason to hesitate to accept anything you said even about the lead-up events as being truthful.

49 Mr Doyle sought to establish a mitigating fact in your favour, namely, what your state of mind was at the time you stopped your vehicle, turned it around, and drove to the south. The onus of proving this matter was upon you. To my mind, you have failed to discharge that onus. I do not accept that the reason why you stopped and turned around your vehicle was because of your perception that Abdiqani was in danger. Your precise reason for doing that and then driving to the south is something I am unable to conclude. I do accept, however, that you had no aggressive intent when doing so. I also accept that your conduct occurred only a short time after the very unexpected and frightening event of the windows to your vehicle having been smashed and you having been showered with glass. This was far from being a well thought out, calm, rational piece of decision-making by you.

50 As you accelerated rapidly and for a short distance to the south, there were at least four pedestrians on the roadway in front of you. You at least knew of the likely presence of some or all of those pedestrians. The street was dark. There were people moving in front of you. It was, as asserted on your behalf, a dynamic situation. The need to take particular care when driving in close proximity to pedestrians who may be struck by your vehicle should have been perfectly clear to you. And yet, knowing what you did, you chose to accelerate heavily to the south. You drove in such a fashion that you struck and fatally injured Paul Duncanson without braking or taking any evasive action at all. At all times, you were in full control of your vehicle.

51 Insofar as Mr Doyle submitted that the influence of the other occupants of the car in insisting that you stop the car and in getting out of the vehicle even before you stopped was a relevant matter to consider when assessing your moral culpability, I do not consider this is a very strong point. The obligation to drive with adequate care for the safety of those who might be hurt by your actions was yours and yours alone. You are the person who owed a duty of care to Paul Duncanson and any other people who might be injured by your conduct as a driver.

52 It is true that your driving leading up to the collision was only for a short distance. As for your speed, there is no evidence upon which I could be satisfied beyond reasonable doubt of a particular speed in excess of that which was in effect conceded by your counsel. Having said that, by your rapid acceleration of that vehicle from when it was stationary after you turned it around, in that short distance, you were able to bring the vehicle to a speed at which, when it struck Paul Duncanson, it threw him into the air and caused fatal injuries to him.

53 Your plea of guilty to the charge of negligent manslaughter was an acknowledgment of the fact that your conduct as a driver in this case fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that it deserves criminal punishment.

54 Even taking into account the unpremeditated nature of your offending, and the particular circumstances in which it arose, your moral culpability for your crime is still significant.

55 I take into account in your favour your plea of guilty to this crime, and the stage in the proceedings at which that plea was entered. You ran a contested committal in this matter, were committed for trial for murder, and then stood your trial until the close of the prosecution case. The trial ran in front of a jury for in excess of four weeks. Part way through discussions pursuant to the Jury Directions Act 2015 about directions of law to be given to the jury, it was indicated to me that you would plead guilty to negligent manslaughter. On 6 November 2019, you were re-arraigned on the charge of murder at the request of your counsel. You pleaded guilty to manslaughter.

56 Despite its lateness, your plea of guilty is still a significant matter. Mr Doyle submitted that your plea of guilty was of utilitarian value, vindicating the community's interest in securing a conviction which reflects your culpability, in circumstances where a complete acquittal was possible. I accept that that is so.

57 Mr Doyle also sought to rely on an offer made on your behalf on 17 September 2019 to plead guilty to a charge of dangerous driving causing death ('DDCD'). This offer was made about two weeks before the trial was due to commence. He submitted that this offer demonstrated your willingness to accept responsibility for Paul Duncanson's death, and your recognition of criminal culpability in your driving on the night in question.

58 I do not consider that this offer, made so late in the piece to a charge which did not reflect your true criminality, adds much if anything to your eventual plea of guilty to manslaughter.

59 As for that plea of guilty, Mr Doyle relied on it, and other material, in support of a contention that you are remorseful for your crime. As well as by your plea of guilty, he submitted that you have expressed your remorse to your family members, and more recently to a psychologist Gina Cidoni. Furthermore, at the time of your arrest after surrendering yourself to the police, you expressed regret at the fact that 'someone's... no longer in the world'. Mr Doyle submitted that in your case the question of remorse was 'an unusually complex one'.

60 I agree that the issue of remorse in your case is not a simple one. When you collided with Paul Duncanson and sent him flying into the air, you could have been in no doubt that he must, at least, have been seriously injured as a result. That belief would surely have been confirmed by what you must have been in a position to see when you left your vehicle and shepherded your friends and brother back into the car. And yet in spite of that, rather than stay to help the seriously injured man, you fled the scene, disposed of your vehicle, and went to some lengths to avoid contact with the police. I make it clear that you are not to be sentenced for the additional crime of failing to stop and render assistance following an accident. Your conduct after your crime, however, is a relevant matter to take into account when the question of remorse is being considered. At that time, albeit that undoubtedly there may have been an element of panic to your conduct, self-evidently, you were not remorseful.

61 Your conduct in the police interview tends to confirm that contention. I have already said much about the way in which you handled yourself during the interview. It did you no credit at all. You did not tell the truth about your criminal actions. Although you expressed some regret about the fact that a person had died, even this was a long way from being a convincing expression of remorse.

62 After having been charged on the day of your interview, you went through a long period denying guilt, and denying criminal responsibility for the death of Paul Duncanson. This was the case at least until your offer to plead guilty to DDCD on 17 September 2019.

63 Since that time, in things you have said to your family and to Ms Cidoni, you have expressed your remorse. Finally, on 6 November 2019, you pleaded guilty to manslaughter, accepting proper responsibility for your criminal conduct. I do accept that that plea, late though it was, was an expression of a degree of remorse you now feel for your crime. I take that remorse into account in your favour. I express the hope that the fact that you have heard, in the words of Cheryl Duncanson read out by the prosecutor during the plea hearing, the devastating effect of your criminal conduct on her, may lead you in time to more fully feel deep regret and sadness at what you have done.

64 For completeness, I mention the fact that the day after the entry of your plea of guilty, through Mr Doyle, you indicated your intention to seek leave to withdraw that plea of guilty and to proceed with a trial. Eventually you reconsidered that course, and on 20 December 2019, confirmed that you would no longer be seeking leave to withdraw your plea of guilty. I make it clear that in no way have I held it against you, in relation to remorse or anything else, that for a time you were proposing to seek leave to withdraw your plea of guilty.

65 You were born in Somalia on 25 August 1991, and are now 28 years' old. Your family arrived in Australia as refugees in 1998, via Kenya. You are the second oldest of eight children. The family lived in Adelaide for two years before moving to Melbourne in 2001. The family lived in Ministry of Housing homes in Carlton, Footscray and then Braybrook. You had what you have described as a normal family upbringing with no history of neglect or violence. You apparently have little recall of your life in Africa.

66 You were educated in primary schools in Adelaide and Braybrook, and then completed years 6 to 12 at Al Taqwa Islamic College in Truganina. You apparently wanted to get into the area of business management, but did not complete any courses in that field. You commenced a computer science degree at RMIT University but deferred after a short time, having found the work a bit overwhelming.

67 You commenced working at a car wash in North Melbourne, which coincided with the time you started using cannabis. You became a daily user of the drug.

68 You enrolled in a Diploma of Business at Victoria University, but you did not complete that course. Your heavy cannabis use by that time was a contributing factor to your inability to persist in your studies.

69 In 2012, when you were about 21, your father, as a result of concerns he had that you had gone off the rails, took you to Kenya for six months. On your return to Melbourne, you resumed your old associations and your drug use again interfered with your attempts at pursuing the business course.

70 In 2014, you returned to Kenya, this time with your mother, to look after your ill grandfather. After spending a further six months in Kenya, you returned to Australia again.

71 You never enrolled in any further study courses. You began working in warehouses. You got a forklift driving certificate and started working as a casual forklift driver through a labour hire company. Up until the time of your remand, you did that work and some work in a recycling plant. Your drug use became a serious problem for you as it increased, leading to at least one paranoid episode. Sometime before the incident in question, you moved out of home.

72 Since being in custody, you have recognised the need to better yourself insofar as you are able to in prison. With your eye on the prospect of a productive life after your eventual release, you have participated in every educational and vocational course available to you, to keep yourself occupied in prison, and to maximise your employment prospects upon your release.

73 In custody, you have had trusted positions as a cleaner and as a laundry billet.

74 I take into account the bundle of certificates tendered during the plea in relation to the many courses you have completed. I accept that you have tried to better yourself in prison.

75 You have only one prior court appearance, which resulted in a non-conviction fine for theft. This is of no relevance where sentence is concerned.

76 The report of Ms Cidoni indicated that you are of normal intelligence. Personality testing indicated elevated levels of stress, anxiety and depression, a tendency to ruminate excessively, and some obsessive and compulsive personality traits. Ms Cidoni noted also some paranoid ideation, and expressed the view that the paranoia probably emerged and escalated with your chronic cannabis use. The only disorder as such diagnosed by Ms Cidoni was Substance Use Disorder. She made no diagnosis of any condition concerning depression or anxiety.

77 Mr Doyle submitted that there was a basis for me to find that your mental condition makes life in custody more difficult for you than for a person without your mental condition. I took this to be a reference to the fifth limb in R v Verdins.[4] He made the submission immediately following a submission to the effect that prison is not an environment in which you feel at all comfortable, and that you are anxious and constantly ruminate upon your position. When I asked Mr Doyle to point to the condition from which you suffer that would justify the submission he had made, he referred to paragraph 38 of Ms Cidoni's report. When asked if that material went far enough to enliven that limb of Verdins, Mr Doyle acknowledged that yours was not the most significant case of an increased burden of imprisonment, but maintained that it was there.

78 I do not accept that submission. To my mind, bearing in mind that the onus of establishing the application of any aspect of the principles in Verdins is upon you, and the rigor that the authorities dictate must be applied to the process, I do not consider that the principle relied upon by Mr Doyle is enlivened. Having reached that conclusion, however, I will still have regard, in sentencing you, to the way in which you are coping with the incarceration you have thus far experienced. On that score, whilst you may be anxious and have a tendency to ruminate, it clearly has not stopped you from being able to achieve a good deal in custody, and hold down important jobs within the prison.

79 Some weeks after the initial hearing of your plea in mitigation, the effects of the COVID-19 virus began to be felt around the world. A pandemic was declared by the World Health Organisation and a state of emergency declared in many locations throughout the world, including in Victoria. The effects of the pandemic have been felt throughout the criminal justice and correctional systems.

80 In your case, the conditions under which you have been held on remand over the last five weeks have become markedly more onerous. All personal visits into prisons in Victoria were stopped on 21 March 2020, with the result that your ability to maintain contact with your loved ones has been substantially curtailed. Educational, vocational and other programs have been cut back or stopped. The ability to maintain religious observance in the company of others, something which is important to you, has been stopped. The number of hours during which you are permitted to be outside your cell has been markedly reduced and the prospect of lockdowns is a real one. Your ability to socialise with your closest friend in the prison, who is held in a different part of the gaol, has been curtailed. The normal freedoms which would be available to you, albeit in the tightly controlled environment of a prison, are no longer there. The result of all of this is that, on a practical level, the conditions under which you have been held for the last five weeks, are being held now, and will be held for an indefinite period of at least some months into the future, are quite restrictive and onerous. Indeed, you have found things somewhat bleak and depressing as a result.

81 In addition, the change and uncertainty introduced by the COVID-19 pandemic is a source of anxiety for you. You are not in a position to control your potential exposure to the virus as would be a person not in custody, and are concerned about the potential effects should the virus make its way into the prison system. Furthermore, you are removed from family and loved ones, and not able to care for them in a practical way.

82 I take into account in sentencing you, the relatively harsh conditions under which you have been held for a time, and will continue to be held for some time to come, as well as the additional anxiety you feel as a result of the implications of the pandemic. I note, however, as pointed out by Ms Karamicov, that on present indications, there is every reason to think that these additional burdens of incarceration will exist only for a small proportion of the overall period of time that you will be required by the sentence I pass to spend in custody, a position that is markedly different from the case of a prisoner who, for whatever reason, may be required to spend the entirety of his sentence in the onerous conditions of protection. Also, the prosecutor was correct to submit that the current onerous conditions cannot be permitted to overshadow the other factors which dictate that in your case, a substantial term of imprisonment must be ordered to be served.

83 The mother of Paul Duncanson and Sean Duncanson, Cheryl Duncanson, made a victim impact statement which was tendered on the plea hearing and read aloud in Court by Ms Karamicov. In the statement, Ms Duncanson detailed the heartbreaking and devastating loss she has suffered as result of your criminal action which took away the life of her son Paul. She described being confronted with the news of the death of one son and the critical injuries suffered by the other as being her 'worst nightmare'. This was especially so in light of the tragic death of two others of her children in 1987 and 1999. She spoke of the considerable trauma she experienced, and continues to experience. She could not eat, started to lose weight, and had trouble sleeping. She agonised over why her son had died. She feared for her own safety, wondering whether one of the offenders might know her address and come after her. She described occasions of sitting at home looking at a photograph of her son, and saying out loud, 'Why did you leave me, Paul', and other occasions when she would break down in tears when something would remind her of him.

84 The victim impact statement of Ms Duncanson is a very clear indication of the terrible trauma and loss that your actions inflicted upon her. I take the contents of her statement into account when considering the appropriate sentence to pass upon you, but in the knowledge that no sentence of this Court will go any significant way to comforting her in that loss.

85 I note, also, that Ms Duncanson is clearly not the only victim of your crime. Paul Duncanson's brother Sean was present when his brother was struck by your vehicle and fatally injured. Whilst he did not prepare a victims impact statement, in respect of what was done to him, or the effect upon him of the death of his brother, there could be no doubt that he would have been greatly saddened and traumatised by Paul's death. As Cheryl Duncanson said in her statement, 'Sean still has flashbacks about the night they were both assaulted, he misses his brother Paul so much, they weren't just brothers, they were best mates'.

86 I have regard, in sentencing you, to the effect of your crime upon one of its other victims, Sean Duncanson.

87 A question arose during the plea hearing whether or not there was any parity issue to consider as between you on the one hand, and Abdi and Abukar on the other. Mr Doyle submitted that there was no such issue. He submitted that neither the principle of parity nor the broader notion of equal justice as envisaged in Farrugia v R[5] would require or permit me to have regard to the sentences in the cases of Abdi and Abukar when determining the appropriate sentence in your case. I accept that that is so, and have arrived at a sentence I consider to be appropriate in your case without reference to the sentences I determined were appropriate in those other cases.

88 I am, of course, conscious of what those sentences were, and I pronounced the sentences earlier today. Those sentences were higher than the sentence I intend to pass upon you. To the uninformed observer, that may seem surprising in light of the fact that your crime resulted in the death of a person, an outcome which is always tragic and very serious, whereas the other two men are answerable for the intentional causing of serious injury to their victim. The outcome in these three matters is a reflection of the application of the process of intuitive or instinctive synthesis in the cases of you, Abdi and Abukar, insofar as I was able to engage in that process to the best of my ability. I have done my best in this sentence, and the sentences of Abdi and Abukar, to explain my rationale for arriving at the respective sentences.

89 One of the matters to which I am required to have regard in sentencing you is current sentencing practices.[6] Mr Doyle submitted, and the prosecution accepted, that in circumstances where you are to be sentenced for manslaughter arising from the grossly negligent driving of a motor vehicle, sentencing practices for culpable driving are also relevant.

90 Mr Doyle drew to my attention a number of sentencing decisions of judges of this Court involving manslaughter by the use of a motor vehicle. In each case, Mr Doyle asserted that yours is a less serious crime than those considered in the respective cases. In particular, he submitted that the lack of any aggressive intent and the lower moral culpability in your case put your offending in a less serious category.

91 In respect of sentencing practices for culpable driving, Mr Doyle submitted that most examples of that offence involve aggravating features not present in your case, such as intoxication, excessive speed, sustained risk-taking and the like. He submitted that your culpability is comparable with that which might be found in culpable driving cases at the lowest end of the spectrum of seriousness. On that score, Mr Doyle drew my attention to a case of Leddin v The Queen [7], which he described as a culpable driving case with an unusually low level of culpability. I note that Ms Karamicov in her submissions made the point that in many respects, that was a case which was far from comparable.

92 I have had regard to current sentencing practices in arriving at the appropriate sentence. In seeking to understand those practices, I have had regard, amongst other things, to the relevant Sentencing Snapshots for manslaughter[8] and culpable driving,[9] the statistics maintained by the Sentencing Advisory Council, the digests of appellate decisions concerning both crimes in the Victorian Sentencing Manual and other comparable cases including those drawn to my attention by Mr Doyle. In so stating, I note what has been routinely said by the Court of Appeal in recent years as to the quite limited assistance that is provided by mere statistics, and the fact that no comparable case is truly comparable, or can in any way be some sort of precedent to the sentence I should pass.

93 You are to be sentenced for the always-serious crime of manslaughter. I accept that your crime was committed in very particular circumstances which have been the subject to much consideration in this sentence. It is true that your crime was entirely unpremeditated, and without any intention at all to cause injury, much less, death, to a person. That does not mean, of course, that it was not serious.

94 The privilege of driving a motor vehicle comes with important responsibilities, because motor vehicles, when driven without proper care, become exceedingly dangerous weapons. Whilst you did not wield your vehicle as a weapon, as was the case in a number of the decisions to which Mr Doyle referred me, you drove it in a grossly negligent fashion. Your conduct fell so far short of the standard of care that a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that it deserves criminal punishment. This was no mere accident. This was serious criminal offending which warrants strong punishment.

95 To my mind, just punishment, denunciation, general deterrence, and specific deterrence, are important sentencing considerations in your case. You must be punished in a way which reflects the seriousness of your offending. The sentence of the Court must make it perfectly clear that the Court deplores this sort of dangerous conduct on our roads, whatever the circumstances. In respect of general deterrence, a concept that invariably assumes great significance in cases of culpable driving, or homicide brought about by the driving of a motor vehicle, the sentence must be such as to bring it clearly home to others who might be minded to disregard the serious obligations that rest upon them when driving a motor vehicle that such conduct, if it leads to death, will be met with strong punishment. As for specific deterrence, the sentence must bring home to you as an individual that you must never again behave in this fashion.

96 In your case, bearing in mind all of the circumstances including your age, the fact that you have no relevant prior convictions, your plea of guilty, the particular nature of your offending, the strong family support you have, and the impressive efforts you have made inside prison to better yourself, I believe that your prospects of rehabilitation are good. I have borne in mind in arriving at the appropriate sentence the desirability, so far as is possible, of fostering those prospects.

97 Ahmed Sharif, for the manslaughter of Paul Duncanson, you are sentenced to be imprisoned for a period of 5 years and 6 months.

98 I fix a period of 3 years and 6 months during which you will not be eligible to be released on parole.

99 I declare a period of 870 days up to and including yesterday, 29 April 2020, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

100 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 7 years with a non-parole period of 5 years.

101 Pursuant to s 89(1) of the Sentencing Act 1991, I cancel any driver licence or permit held by you, and disqualify you from obtaining a further licence or permit for a period of 24 months, commencing today.

102 I make the forfeiture and disposal orders sought by the prosecution and consented to by the defence.

[1] Issue was taken on your behalf with this aspect of Sean Duncanson's evidence. Nothing turns on it, and I do not need to make a finding one way or the other as to whether this took place.

[3] Section 4(2) Evidence Act 2008.

[4] [2007] VSCA 102; (2007) 16 VR 269.

[5] [2011] VSCA 24; (2011) 32 VR 140.

[6] Section 5(2)(b) of the Act.

[7] [2014] VSCA 155.

[8] Manslaughter Sentencing Snapshot No. 224, April 2019.

[9] Culpable Driving Sentencing Snapshot No. 225, April 2019.