DPP v Cook [2022] VCC 1331 (16 August 2022)

Last Updated: 24 May 2023

IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

CR-21-00529

THE DIRECTOR OF PUBLIC PROSECUTIONS
v
WARREN COOK

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JUDGE:	HIS HONOUR JUDGE BAYLES
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	8 August 2022
DATE OF SENTENCE:	16 August 2022
CASE MAY BE CITED AS:	DPP v Cook
MEDIUM NEUTRAL CITATION:	[2022] VCC 1331

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.

Catchwords: Dangerous Driving Causing Death – Plea of Guilty - Evidence of remorse - No prior convictions - Impaired mental functioning – COVID-19 - Substantial and Compelling Circumstances that are Exceptional and Rare.

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited: Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

Sentence: 3 year community corrections order and licence cancelled and disqualified for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Solicitor for the Director of Public Prosecutions.
For the Accused	Mr J. Williams	Tony Hargreaves & Partners

HIS HONOUR:

1. Warren Cook, you pleaded guilty to two charges of dangerous driving causing death pursuant to s319(1) of the Crimes Act 1958. The maximum penalty for each offence is 10 years' imprisonment. Your plea followed a sentence indication hearing heard on 7 June 2022 where I indicated that if you were to plead guilty to these two charges I would likely impose a community corrections order upon you. Following that indication you were arraigned on these
   two charges and you pleaded guilty.
2. A revised summary of prosecution opening for plea dated 8 August 2022 was filed with the court and read by Mr Moore, who appeared on behalf of the prosecution at both the sentence indication and plea hearings. I adopt that summary as part of my reasons for sentence. I will not repeat it here in detail except to say that the main features of your offending are as follows.
3. At the time of the collision, you were aged 50 years old. You were the driver of an Iveco Acco Cleanaway garbage truck. On Thursday 4 July 2019 at about
   11.18 am you were travelling south along Thompson Road, North Geelong. Your truck was said to weigh approximately 19,800 kilograms. The victims in this matter are Maria Caucci and Robert McDowell. Ms Caucci was 58 years old.
   Mr McDowell was then 64 years old. They lived together in a de facto relationship. Ms Caucci and Mr McDowell were driving in a Mazda sedan.
4. There were several vehicles involved in this collision. They included your vehicle, the Mazda sedan driven by the victims, and also a Hino Tipper truck, driven by Steven Corbett, that was travelling in the opposite direction, north along Thompson Road, and also a Toyota van driven by Patricia Marshall.
5. Thompson Road, North Geelong is a two-way four-lane bitumen road with
   two lanes in each direction. The road surface was in good condition at the time of the incident. The road ran generally north to south in direction. On both sides of the road there are grassed nature strips and footpaths that run parallel to the road. Thompson Road serves as a major thoroughfare from Corio to Geelong.
6. Ms Caucci and Mr McDowell were travelling south in the right lane along
   Thompson Road in their Mazda sedan. They slowed to turn right into the
   Easy Car Wash located in Thompson Road. CCTV footage taken from a nearby location shows the right indicator flashing on the Mazda sedan as it slowed almost to a complete stop near the entry to the car wash.
7. As the Mazda sedan was waiting to turn into the car wash, your vehicle was travelling south in the right lane along Thompson Road. You braked sharply and swerved left but failed to avoid the Mazda and the front right side of your truck collided with the rear of the victims' Mazda sedan. The impact forced the Mazda sedan onto the wrong side of the road and directly into the path of the Hino truck that was travelling north along Thompson Road in the right lane. Almost immediately, the front of that truck collided with the front passenger side of the
   Mazda sedan, forcing the sedan back towards the north and into the southbound lanes, where it sideswiped the driver-side of Patricia Marshall's Toyota van, who had been travelling south behind your truck, before coming to a rest in the left of the two southbound lanes.
8. Following the collision, you stopped your truck on the eastern side nature strip. You got out of your vehicle and ran back towards the collision scene where you remained. Steven Corbett's Hino truck came to a rest at the entrance to
   Hume Reserve Court. Corbett believed he was knocked out by the impact. Once Corbett regained consciousness he moved his truck further into
   Hume Reserve Court where it remained. Patricia Marshall's Toyota van came to rest in the right lane of the two southbound lanes. After making a phone call requesting the aid of police and ambulance, she went to the aid of Ms Caucci and Mr McDowell who were seriously injured in their vehicle.
9. Maria Caucci received fatal injuries and CPR was performed on her at the scene by Patricia Marshall, along with other civilians, until police and paramedics arrived and took over. She was conveyed to the University Hospital Geelong by road ambulance and was pronounced deceased a short time later.
10. Robert McDowell received life-threatening injuries and was initially conveyed to the University Hospital Geelong by road ambulance and later, on the day of the collision, Mr McDowell was conveyed by air ambulance to the Alfred Hospital where he received treatment for his injuries. Mr McDowell's condition deteriorated before he passed away on Saturday 3 August 2019, some one month after the incident.
11. Police conducted a detailed investigation into the circumstances leading to the fatal collision. The data and information collected included GPS data and employee run sheets from Cleanaway, dashcam video segments from some of the vehicles involved, CCTV from nearby businesses, telephone data and records, photographs and video of the scene, and statements from various eyewitnesses. GPS data from your truck revealed that at 11.18 am you were travelling at approximately 54 kilometres per hour in a southerly direction near
    320 Thompson Road.
12. Senior Constable Mark Osborne attended the scene and spoke to you. You told him, 'I was travelling toward Geelong. I saw them at the last moment. I tried to swerve, but I hit the back of them and pushed them onto the other side'.
13. Sergeant Peter Radford attended the scene and also spoke to you. He conducted a preliminary breath test and a preliminary oral fluid test on you. Both returned a negative result.
14. Police investigation revealed that at 11:17:19 am you telephoned a fellow driver and employee of Cleanaway, being Eddie McNaughton. Eddie McNaughton stated that he could tell that you were calling on a Bluetooth device because of the distinctive sound. He recollects that the call suddenly went silent and he thought you had dropped out. That call was of four seconds duration. Assuming the accuracy of the timestamp of the CCTV and the times in the phone records, that phone call was made by you and finished four seconds prior to the collision.
15. Dr Janelle Hardiman, detective sergeant and collision reconstructionist attached to the Victoria Police Reconstruction Unit, attended the scene, made observations, conducted examinations, and gathered evidence relevant to the collision. She gave the opinion that you were travelling between 54 and
    59 kilometres per hour when you applied emergency braking and swerved left in an attempt to avoid colliding with the Mazda sedan. Your truck skidded for about
    15.6 metres before colliding with the rear of the Mazda sedan. When your truck collided with the rear of the Mazda it was travelling at about 30 to
    33 kilometres per hour. As a result of the collision the Mazda sedan was pushed across onto the northbound lanes of Thompson Road where it was impacted by the Hino truck travelling north in the right of two northbound lanes of
    Thompson Road.
16. The driver of the Hino truck did not apply emergency braking prior to impact. There is no evidence that the Hino truck was travelling in excess of the speed limit either immediately prior to or at the time of the collision. As a result of the impact with the Hino truck, the Mazda sedan was pushed back across into the southbound lanes of Thompson Road where it then collided with the stationary
    Toyota Hi Ace. The Toyota Hi Ace van had been travelling south on
    Thompson Road behind your truck when the collision first occurred. The driver of the Toyota Hi Ace reacted to the collision between your truck and the Mazda sedan by slowing to a stop.
17. Dr Hardiman later conducted further analysis of all the available data, CCTV and evidence collected at the scene. The purpose of this further examination was to determine what opportunity you would have had to avoid the collision. In a report dated 12 March 2021, Dr Hardiman stated that you commenced breaking at
    3.64 seconds after the Mazda activated its indicator. Dr Hardiman offered the opinion that if you had commenced breaking within 2.83 to 3.19 seconds of the Mazda activating the indicator you would have come to a controlled stop without colliding with the Mazda.
18. However, at the s198B hearing in this matter on 15 March 2022, Dr Hardiman gave evidence that research indicates that 95 per cent of drivers will perceive and react to a threat on the road ahead of them between 0.7 and three seconds. Her evidence was that you started breaking at between 3.3 and 3.6 seconds after the Mazda activated the indicator. Therefore, the evidence indicates that your perception and reaction time was only 0.3 to 0.6 seconds outside the reaction time of 95 per cent of the population on average.
19. The prosecution case in this matter is that you failed to see the Mazda in sufficient time to avoid the collision. The prosecution alleges that that failure involved a serious breach of the proper control of your motor vehicle in all the circumstances of this case and that that breach constitutes the offence of dangerous driving causing death. The prosecution case was that had you been paying proper attention you would have been able to break in time to avoid the collision.
20. Significantly in this matter, the prosecution conceded that your failure to see the Mazda and brake in sufficient time was due to momentary inattention on your part.
21. I received two victim impact statements prior to the plea hearing. They were from Jean McDowell and Frank Caucci. Both victim impact statements were read to the court by Mr Moore. Frank Caucci described the relationship between Maria and Robert, how they loved and cared for each other deeply.
22. Both of those victim impact statements described the sadness, the loss and the grief experienced by those who were close to Maria and Robert. The loss of human life in circumstances such as these will always be a great tragedy. The victim impact statements that I received and read describe some of the impact that the loss of these two lives has had on those close to them. I am sure the impact is also felt more widely than can be expressed in these documents.
23. I have read these documents closely and will take them into account in the sentencing process. I must impose a sentence today that reflects the criminality and culpability for the offences that are before the court. Such sentences will never adequately reflect the lives that were lost and the trauma and suffering experienced by those who are touched by this tragedy.
24. Dangerous driving causing death is a category 2 offence. Pursuant to s5(2H) of the Sentencing Act, I must impose a custodial sentence unless certain exceptions are made out. Mr Williams, who appeared on your behalf at both the sentence indication hearing and the plea hearing, filed written submissions dated
    6 June 2022. Mr Williams also relied on written submissions previously filed with the court dated 9 December 2021. In those written submissions, and elaborated upon primarily at the sentence indication hearing, and later at the plea hearing,
    Mr Williams argued that there were two exceptions relied upon by the defence in arguing that I should not impose a custodial sentence pursuant to s5(2H) of the
    Sentencing Act.
25. First, pursuant to s5(2H)(c)(ii), that you suffer from impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Second, pursuant to s5(2H)(e), there are substantial and compelling circumstances that are exceptional and rare and that justify not making a custodial order.
26. Before turning to these submissions, I will say something briefly about the procedural history of this matter. A contested committal hearing occurred on
    27 November 2020 and 23 February 2021. At the conclusion of the committal hearing you were discharged on both charges of dangerous driving causing death. On 19 April 2021 a direct indictment was filed in this court. The matter proceeded through a number of mentions and directions hearings from that point.
27. A previous sentence indication occurred on 13 December 2021 before a different judge. Prior to that hearing a prosecution outline for sentence indication dated
    7 December 2021 was filed with the court. I received a copy of that document. Defence also filed written submissions prior to that hearing. A document entitled Outline of Defence Submissions in Support of Sentencing Indication, dated
    9 December 2021, was filed with the court and I received a copy of that document too. It is my understanding that the prosecution position on sentence at that hearing was that a term of imprisonment was required to be served.
28. On 1 February 2022 a s198B application was granted in respect of the witness
    Dr Janelle Hardiman. Cross-examination of Dr Hardiman occurred on
    15 March 2022. Following that examination, the defence made an application for a further sentence indication hearing which was granted before me.
29. Following the s198B cross-examination of Dr Janelle Hardiman, the prosecution filed a revised prosecution outline for sentence indication dated 7 June 2022. That document included reference to the evidence of Dr Hardiman with respect to the average perception and reaction times, and your reaction time in this case. That document differed in an important respect from the previous prosecution outline dated 7 December 2021 in that the prosecution now accepted that your failure to observe the other vehicle, and to stop in time, was due to momentary inattention on your part.
30. The prosecution outline for sentence indication dated 7 December 2021, and the revised prosecution outline for sentence indication dated 7 June 2022, both stated that the prosecution submission on sentence was that the court should impose an immediate custodial sentence. However, at the sentence indication hearing before me on 7 June 2022 Mr Moore supplemented those submissions orally. Mr Moore conceded that there has been a change in circumstances since the previous sentence indication hearing, and that the position of the defence was somewhat stronger than it was on the previous occasion. In relation to the latest sentencing submissions filed by the defence and the arguments put forward, Mr Moore acknowledged that the defence are obviously pointing towards a combination of circumstances. The prosecution maintained its position on sentence, but Mr Moore submitted that he was instructed to acknowledge that ultimately the matter was one for the court. Mr Moore submitted that it is a matter for the defence to convince me of the matters that it needs to establish, but ultimately that is a matter for the court.
31. At the plea hearing Mr Moore reiterated these submissions, stating that, because of s5(2H), a term of imprisonment must be imposed unless satisfied that one of the exceptions is made out. The prosecution position was that a sentence of imprisonment should be imposed, but the prosecution conceded that it is a matter for the court as to whether the exceptions under s5(2H) are made out.

Defence submissions

32. I turn to the defence submissions in this matter. As previously stated, in relation to the 5(2H) threshold, Mr Williams relied upon exceptions pursuant to both
    s5(2H)(c)(ii), being that you suffer from impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden of imprisonment, and s5(2H)(e), that there are substantial and compelling circumstances that are rare and exceptional and that justify not making a custodial order.
33. In relation to the first of these matters Mr Williams relied upon the psychological report of Patrick Newton dated 22 September 2021. Mr Newton's report is a comprehensive and helpful report and I take it into account in its entirety. In that report Mr Newton stated the opinion that you suffer intense multifaceted anxiety across the physical, cognitive, emotional and interpersonal domains of your experience. Your symptoms cluster around the typical post-traumatic syndrome of reliving the collision, persistent hyper-arousal, emotional numbing and avoiding triggers associated with the collision. You also experience a range of associative symptoms and your mental clarity continues to be compromised by your emotional distress.
34. Mr Newton stated the opinion that your symptoms are sufficient to meet the
    DSM-5 criteria for post-traumatic stress disorder. Mr Newton stated the opinion that your symptoms cause you 'intense distress' despite you having participated in treatment in the form of counselling. Mr Newton stated that it is likely that you would experience a particularly significant increase in your symptoms in the period following any finding of guilt and sentence which might be imposed.
35. Mr Newton elaborated on these submissions significantly at paragraphs 47, 48, and 49 of his report. I will not repeat those here in full, suffice to say that
    Mr Newton concluded that during any period in custody you would be vulnerable to both more regular and more intense bouts of clinically intense anxiety and mood disturbance than would a prisoner who did not suffer your pre-existing condition. Mr Newton concluded that the effect upon you of any term of imprisonment that you may be required to serve would be likely to be substantially more onerous than is ordinarily the case.
36. In relation to the exception under s5(2H)(e), Mr Williams submitted the following matters:

    (a) He submitted that your moral culpability for the offences is very low. In particular, in the written submissions dated 6 June 2022, Mr Williams submitted that your moral culpability falls to be assessed at the absolute lowest end of the spectrum. That submission was a reference to the following matters:

    (i) your reaction time was 0.3 seconds outside of the reaction times for

    95 per cent of the population;

    (ii) there is no allegation of speeding and, in fact, the evidence is that you were travelling well within the speed limit;

    (iii) there is no allegation of fatigue, intoxication, or any other drug use;

    (iv) there is no suggestion of any other contravention of the road rules;

    (v) there is no allegation of any other erratic, careless or bad driving. This is a case that must be considered to be one of genuine momentary inattention;

    (vi) Mr Williams referred me to the concession made by the Crown that your failure to observe the other vehicle was due to momentary inattention on your part. I note in written submissions Mr Williams referred to this alternatively as insufficient attention for a momentary period.

    (b) Mr Williams also submitted that, given all of the above matters, your plea of guilty was entered in the face of what Mr Williams submitted was a weak Crown case, and thus your plea of guilty forgoes a genuine chance of an acquittal and is reflective of significant remorse.

37. I also note Mr Williams' outline of defence submissions in the documents dated
    9 December 2021 and 6 June 2022. Both are comprehensive and helpful documents which I take into account in their entirety. I also note the inclusion of comparable cases, including a list of cases that consider momentary inattention absent other aggravating features, and a list and brief summary of comparable cases that consider exceptions under s5(2H) of the Sentencing Act. Noting of course the limitations on the use to which comparable cases can be put, I have read and had regard to those cases as providing some assistance to me in having regard to current sentencing practices

Analysis

38. I will commence with reference to s5(2H) of the Sentencing Act. I have particular regard to s5(2HC), which states that I must have regard to general deterrence and denunciation as having greater importance than other purposes set out in
    s5(1) of the Sentencing Act. I must give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence. In addition, I must not have regard to your previous good character, other than the absence of previous convictions or findings of guilt. I must not have regard to any early plea of guilty. I must not have regard to your prospects of rehabilitation.
39. I pause here to note the prohibition on having regard to an early plea of guilty. In this case your plea of guilty was not an early plea. I note that the legislation does not prohibit having regard to a plea of guilty, it prohibits having regard to an early plea of guilty. I interpret this provision as meaning that in determining whether there are substantial and compelling circumstances under s5(2H)(e), a court can have regard to the fact of a plea of guilty, but must not have regard to any additional effect of an early plea of guilty. That is to say, it seems to me that the court can have regard to the fact that an accused person pleads guilty, as contrasted with an accused person who does not plead guilty but is found guilty after trial, but the court must not have regard to anything that flows from an early plea over and above the fact of the plea of guilty.
40. In determining whether there are substantial and compelling circumstances I must have regard to Parliament's intention that sentencing for a category 2 offence should ordinarily attract a term of imprisonment. I must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
41. The offence of dangerous driving causing death carries a maximum penalty of
    10 years' imprisonment. This is a particularly tragic example of a road traffic incident involving the loss of life as in this case there were two lives lost. Cases such as these always lead to trauma, grief and suffering for those who are affected. The victim impact statements in this matter describe how that is particularly so in this case. I must have regard to the fact that two lives were lost. This is tragic for those who lost their lives, and also for all those who are touched by these events. Victim impact is a matter that I must take into account and I will do so.
42. At the same time, the offence of dangerous driving causing death is one that can be committed in a broad range of circumstances, with a broad range in moral culpability. The offence can be committed in circumstances where a driver of a motor vehicle deliberately drives the vehicle in a dangerous manner, whether through speed, steering or some other action upon the vehicle. This was not such a case. You were effectively at work, driving your vehicle otherwise in compliance with road rules. The collision occurred due to momentary inattention on your part.
43. It is an inherent part of the nature of driving on the roads that momentary inattention can lead to catastrophic results. That is why the duty of every driver towards other road users is such a significant and important duty. The breach of that duty in this case led to catastrophic results and constitutes a serious criminal offence. There is a difficult balance that must be made in the assessment of the seriousness of this instance of the offence.
44. In this case you were the driver of a large and heavy garbage truck. It must be observed that the driver of a large and heavy vehicle carries a particular duty to other road users. I also note the evidence that it appears that you had a short telephone conversation through your vehicle's Bluetooth device approximately four seconds prior to the collision. As the summary of prosecution opening states, that action provides a plausible source of distraction and reason for your failure to observe the vehicle in front of you.
45. However, I also have regard to the fact that you were in effect at work at the time of this incident. You were going about your business in an otherwise law abiding manner. The prosecution accepts that your failure to observe the vehicle in front of you was due to momentary inattention. In all the circumstances of this case I am prepared to take the view that your moral culpability for this offending is towards the lower end of the range. As I see it, that is an important part of the assessment of all the circumstances of this case.
46. I turn specifically to the exception argued pursuant to s5(2H)(c)(ii). I have read and have regard to the report of Mr Patrick Newton. I have particular regard to the matters set out at paragraphs 30 to 41 and to the opinions stated at
    paragraph 45 of the report. Mr Newton states the opinion that you are experiencing severe traumatic anxiety, you were clearly traumatised at the time of the collision and overwhelmed by powerful emotions, you continue to be troubled by intrusive recollections of the collision, experiencing considerable ongoing symptoms of anxiety and hyperarousal, you have numbed your emotional responses and go to some lengths to avoid reminders of the collision. You are unable to drive trucks again and you are easily triggered into states of marked distress.
47. The symptoms cause you intense distress. Your symptoms are sufficiently intense to meet the DSM-5 criteria for post-traumatic stress disorder (PTSD). Your symptoms remain intense despite participation in treatment with a counsellor. You have been at a genuine risk of experiencing a deterioration in your mental state as this case has continued. You have also been experiencing a range of depressive symptoms which complicate and intensify your trauma. Although these symptoms are noteworthy they are not sufficiently severe to meet the criteria for a comorbid depressive condition.
48. Mr Newton stated the opinion that the risk of a complicated trauma reaction would be increased if you were to be required to serve a term of imprisonment. He concluded with the opinion that the impact of imprisonment on you would be substantially and materially greater than the ordinary burden or risks of imprisonment.
49. These opinions were not challenged by the prosecution. I accept these opinions. I accept that you have discharged the onus to establish on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
50. I turn to the question of whether there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.
51. I have regard to the finding that I have already made in relation to your moral culpability. You pleaded guilty. You have no prior convictions or findings of guilt against you. I do not necessarily move to make the finding that the prosecution case against you was weak, however, I do accept that you would have had an arguable case had you chosen to go to trial. Your plea of guilty was entered in this context. It has significant utilitarian value and I accept that it demonstrates, and is otherwise accompanied by, remorse.
52. I accept that you are extremely remorseful. You stopped your vehicle immediately and attended the collision scene. You were cooperative with police. You stated, 'I saw them at the last moment, I tried to swerve, but I hit the back of them and pushed them onto the other side'. Mr Newton stated that you expressed feelings of horror and overwhelming regret regarding the collision, together with a crushing sense of responsibility and sadness that you are connected with the deaths of two other people. You said to Mr Newton, 'Since then, it just haunts me all the time'. Mr Newton stated that your ruminations on the collision and its aftermath are central to the trauma you now experience.
53. You ceased working as a truck driver immediately following the incident and you have sought alternative employment. In a reference letter provided by your wife
    Kathleen Cook she states:

He was shattered by what has taken place and to this day is still recovering. He is still engaged with his counsellor and there are days where he retreats because of the guilt he feels from that day.

54. I also have regard to the totality of the matters contained in the psychological report of Mr Newton, including his conclusions about your impaired mental functioning.
55. In my view, having regard to all the circumstances of this case, there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order for imprisonment. In my view the cumulative impact of the circumstances of this case do justify a departure from the intention that an order for a term of imprisonment should ordinarily be made for a category 2 offence.
56. I now turn to other matters relevant to sentence not governed by s5(2H) of the
    Sentencing Act. You are a person of excellent good character. You have a good work history and work ethic. You are committed to your family and you work hard to support them. You have made a contribution to the community through sporting clubs and coaching junior sport.
57. I note the personal references filed with the court and relied upon at your plea hearing. You are widely regarded as a loyal person, loyal to your family, your friends and volunteer organisations that you have been involved with. You are a person who often volunteers your time to help support family, friends and volunteer organisations. You have been involved in the education and development of junior sport, and have been involved in coaching roles. You are described as having a calm demeanour, showing genuine care for the young people you work with and showing a great sense of fair play.
58. As a worker you have a long history of hard work. You are a reliable, honest and hard-working employee. You are a husband to your wife Kathleen, you are the father to your two children, Charlie aged 17 and Ruby aged 15. You have always been involved with your children's lives and worked hard to provide for your family. You are loyal to your extended family, especially your mother and your sister. This incident is a tragedy for everyone involved, including you and your family, and I accept that you, too, have suffered greatly.
59. I must now impose a sentence upon you that is just having regard to all the circumstances of this case. I must impose a sentence that takes proper account of the fact that two people lost their lives. I must have proper regard to the impact on the primary victims and on all those who are touched by this tragedy. I must impose a sentence that gives sufficient weight to general deterrence and denunciation, and takes into account the nature and gravity of the offending. This is a complex sentencing exercise that requires balancing a number of competing factors.
60. As I stated at the plea hearing, the sentence that I impose in this matter will never adequately reflect the loss, the grief and trauma experienced by those who are touched by this incident. It will never be an adequate reflection of the loss of
    two lives. I do, however, hope that the conclusion of this matter through the criminal justice system provides some closure for all those who are involved.
61. I have regard to the principles discussed in Boulton in a limited way. I do not consider the principles of Boulton in my assessment of the matters under s5(2H) of the Sentencing Act, but, after making my findings under s5(2H), I do have regard to the comments of the Court of Appeal about how a community corrections order can be punitive through the length of the order and through the imposition of unpaid community work and how, through these measures, a community corrections order is capable of expressing both general deterrence and denunciation.
62. I have regard to the utilitarian value of your plea of guilty, and to the principles in
    Worboyes, and to the additional reduction in sentence to be attributed to the utilitarian value of a plea of guilty during the period of the COVID-19 pandemic.
63. I had you assessed for a community corrections order. I have received and had regard to that assessment report.
64. On the two charges of dangerous driving causing death, you will be sentenced to an aggregate sentence of a community corrections order for a period of
    three years:

    (a) You will be required to perform 200 hours of unpaid community work.

    (b) You will be required to attend as directed for assessment and treatment for mental health condition.

    (c) I direct that the hours of treatment successfully completed as part of the treatment component be deducted from the hours of unpaid community work.

65. Mr Cook, I cannot place you on a community corrections order unless you agree to be placed on such an order. I am going to read to you the mandatory terms of a community corrections order in addition to the conditions that I have imposed upon this order. I ask you to listen carefully to these and at the conclusion of which I will ask you whether you agree to be placed on a
    community corrections order.
    • You must not commit, whether in or outside Victoria, during the period of the order any offence punishable by imprisonment.
    • You must report to and receive visits from the Secretary, that being a supervising officer from Corrections, during the period of the order if required to do so.
    • You must report to Community Corrections within two clear working days of the imposition of this order, that being the Geelong Office of
      Community Corrections.
    • You must notify the Secretary of any change of address or employment within two clear working days after any such change.
    • You must not leave the State of Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
    • You must comply with any direction given to you by Community Corrections in order to ensure compliance with the order.
66. Now, that is in addition to the specific conditions that I have imposed in relation to this order.
67. Mr Cook, I would ask you to take yourself off mute and I will ask you whether you consent to being placed on such an order.
68. OFFENDER: I do, Your Honour.
69. HIS HONOUR: All right. Thank you.
70. I am required to cancel your licence and disqualify you from obtaining another for a minimum period of 18 months. I accept the submissions that Mr Williams has made in relation to that matter. You are not a general risk to the community, you have no prior convictions and are otherwise of good character, and, accordingly, I will make that order for the minimum cancellation period being 18 months.
71. Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these two charges, but all other matters in mitigation were still present, I would have sentenced you to a period of two years' imprisonment, with a non‑parole period of 12 months.
72. Now, just for clarity I will repeat: the community corrections order will be for a period of three years. There will be 200 hours of unpaid community work and a condition for mental health assessment and treatment.
73. Are there any other matters?
74. MR MOORE: No, Your Honour.
75. MR WILLIAMS: No, Your Honour.
76. HIS HONOUR: All right. Thanks, Mr Moore and Mr Williams, for your assistance in this matter. Thank you. We will adjourn the court.

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