IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-23-01452

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
PEARCE, Tyler		

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JUDGE:	His Honour Judge Palmer	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 April 2024	
DATE OF SENTENCE:	10 April 2024	
CASE MAY BE CITED AS:	DPP v Pearce	
MEDIUM NEUTRAL CITATION:	[2024] VCC 438		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords: 	Failing to stop – Failing to render assistance – Careless driving – pedestrian stuck by vehicle in carpark – Offender drove away with knowledge of hit pedestrian – Need for general deterrence, just punishment and denunciation -  Whether CCO appropriate – Early plea of guilty – Remorse – Strong family and community support - Youthful offender – No criminal history
Legislation Cited:	Road Safety Act 1986
Cases Cited:	Neskovski v The Queen [2022] VSCA 86;  Al-Anwiya v The Queen [2022] VSCA 181; Panourakis v The Queen [2021] VSCA 259; Bankal v The Queen [2019] VSCA 171;  Vasilevski v The Queen [2018] VSCA 7; Sarikaya v The Queen [2015] VSCA 236; DPP v Chatre [2014] VSCA 280; and R v Varghese [2023] VCC 1570; DPP v Bunker [2023] VCC 1064; DPP v Nguyen [2022] VCC 1501; DPP v Nguyen [2018] VCC 1297; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 219 A Crim R 369; Boulton v R (2014) 46 VR 308.
Sentence:	Community Correction Order of 3 years - 300 hours community work - $2000 fine – License cancelled and disqualified for 4 years – 6AAA declaration – Imprisonment for 2 years 6 months with non-parole period of 18 months

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms Sarah Thomas	Director of Public Prosecutions	
			
For the Accused	Mr Daniel Gurvich KC	Tyler, Tipping and Woods	
	Mr David De Witt		

HIS HONOUR:

Circumstances of offending
1.	Tyler Pearce, on the morning of 17 January 2023 you were staying with colleagues at a hotel in Mount Waverly. At the time, you were employed by RACV Solar in Traralgon and had travelled to Melbourne to do work at Methodist Ladies College in Kew. 
2.	When you came out of your hotel room that morning to go to work, you noticed a woman stumbling around the carpark of the hotel.  She was Sarah-Jane Lysette. For the last month she had been living in emergency accommodation at the hotel.  
3.	CCTV footage shows Ms Lysette unstable on her feet, stumbling around in the car park, hunched over with her arms dangling towards the ground.  She appears extremely vulnerable.  To you she appeared dangerous, and you felt scared of her.  
4.	At approximately 6 am you got into the driver’s seat of your car.  One of your colleagues got into the passenger seat. Ms Lysette was near your car, and you waited for her to move away.  
5.	After some time, Ms Lysette moved a short distance away from your car.  Thinking this was an opportunity to leave, you put your car into reverse and began backing out towards your left. 
6.	As you did this, Ms Lysette stumbled towards the driver’s side of the car.  She was struck by the side mirror, pillar, bonnet and wheel area of your car, and fell to the ground. 
7.	You knew you had hit Ms Lysette, and you must have seen her lying on the ground.  You must have also been aware that there was no-one else in the hotel carpark at that time.  Nevertheless, you drove around her body, and drove away, leaving her lying prone on the ground.   
8.	Fortunately, other people staying at the hotel saw what had happened and came to Ms Lysette’s aid.  An ambulance was called, and she was taken to hospital.  
9.	When you got to work, you discussed the collision with your workmates, and say that you had decided to contact police at lunch time.  In the meantime, police tracked you down, came to where you were working and arrested you.  You were clearly upset, and made full admissions.  
10.	Sarah-Jane Lysette died from her injuries the following day. Her death has had a devastating impact on her loved ones.  Her father Bill Letch, describes a brilliant and loving daughter with whom he had a strong and close bond, involving many shared adventures fishing, camping, riding motorbikes and watching her perform on stage; a daughter who had faced many challenges in her life, and who was in the process of making a fresh start.  Her sister Jessica Letch writes movingly about Sarah-Jane’s challenges, her death in hospital, and the ongoing impact of Sarah-Jane’s death on her father, on herself and on Sarah-Jane’s mother Pam.
Maximum penalties 
11.	You have pleaded guilty to three charges. The maximum penalties for those charges are as follows:
a.	Ten years’ imprisonment for the offence of failing to stop after a motor vehicle accident contrary to sections 61(1)(a) and 61(3) of the Road Safety Act 1986; 
b.	Ten years’ imprisonment for the offence of failing to render assistance contrary to sections 61(1)(b) and 61(3) of the Road Safety Act 1986; and	
c.	A fine of approximately $2219 for the offence of careless driving contrary to section 65 of the Road Safety Act 1986.
12.	Given that Ms Lysette died as a result of the accident, there is also a minimum mandatory licence disqualification period for the first two offences of either four years or two years, depending on whether or not I impose a conviction: Road Safety Act 1986, s 61(6).
Sentence indication hearing
13.	On 14 March 2024 I heard your application for a sentence indication.  The prosecution submitted that a community correction order (or CCO) would fail to adequately reflect the objective gravity of the offending, and that a term of imprisonment with a non-parole period was the most appropriate sentence.  Your counsel submitted that you should be sentenced to a CCO which required you to do unpaid community work, and that I need not record a conviction.  
14.	On 22 March 2024, I indicated that if you pleaded guilty, the heaviest sentence I would impose would be a combination sentence of a period of imprisonment of not more than 12 months and a CCO.  You accepted that indication.  
15.	Accordingly, the primary issue I have had to determine in the hearing of your plea is whether the powerful mitigating factors that have been put forward on your behalf mean that the relevant sentencing purposes can be met by the imposition of a CCO on its own, or whether the seriousness of your offending and the need for general deterrence require me to also impose a term of imprisonment. 
16.	I am very aware that whatever sentence I impose, nothing I do can bring Sarah-Jane back, or heal the pain that her death has caused to those who loved her.  Nor will any punishment I impose on you reflect the value of Sarah-Jane’s life.  
Current Sentence Practice
17.	In sentencing you, I am required to have regard to current sentencing practice (as I did on the sentence indication hearing).  The prosecution referred me to a number of comparator cases: Neskovski v The Queen [2022] VSCA 86;  Al-Anwiya v The Queen [2022] VSCA 181; Panourakis v The Queen [2021] VSCA 259; Bankal v The Queen [2019] VSCA 171;  Vasilevski v The Queen [2018] VSCA 7; Sarikaya v The Queen [2015] VSCA 236; DPP v Chhatre [2014] VSCA 280; and R v Varghese [2023] VCC 1570.
18.	The defence referred me to two comparator cases: DPP v Bunker [2023] VCC 1064; and DPP v Nguyen [2022] VCC 1501.  The court referred the parties to a further case: DPP v Nguyen [2018] VCC 1297.
19.	I have had regard to all of these decisions.  Of course, every case is different, and current sentencing practice is neither a controlling factor nor a yardstick.  Nevertheless, what I take from these decisions is that:
a.	General deterrence is a very important sentencing consideration for the offences of failing to stop and failing to render assistance.  Just punishment and denunciation are also important considerations.
b.	Drivers who fail to stop or render assistance can usually expect a term of imprisonment with a non-parole period (for example, Neskovski, Bankal, Vasilevski and Sarikaya).
c.	However, a combination sentence may be appropriate where the offending is less objectively serious and there are substantial mitigating factors (for example, Al-Anwiya, Panourakis, Varghese and Nguyen [2022]).
d.	A CCO on its own can even be appropriate, if these mitigating factors are particularly weighty.  This is consistent with the Court of Appeal’s guidance that, in appropriate cases, all of the purposes of sentencing can be met through the imposition of a CCO.
i.	In Chhatre, the offender had struck a pedestrian, who suffered fatal injuries.  The offender was blameless for the accident (so had no reason to flee) but drove away and then attempted to conceal his involvement in the accident by removing damaged parts from his car.  The offender had an unblemished previous record, was deeply remorseful, pleaded guilty, had good prospects for rehabilitation and had already complied for a substantial period with the terms of a CCO.
ii.	In Bunker, the offender struck a pedestrian, who sustained catastrophic life-altering injuries.  The offender was not at fault, and was sentenced on the basis that he ought to have been aware that he had collided with a pedestrian.  The offender had a prior criminal history which included a charge of failing to report an accident to police, and other driving and family violence matters.  The offender pleaded guilty (although not early), had expressed remorse, had reasonably good prospects for rehabilitation and had been diagnosed with ADHD (which the sentencing judge found reduced his moral culpability in line with the principles in Verdins).  
iii.	In Nguyen [2018], the offender had collided with a 13 year old bike rider, who suffered multiple serious trauma injuries.  The offender was not at fault for the collision, but was afraid and panicked, concerned that his lack of English would be an impediment in dealing with the situation.  The offender took four days to hand himself in to the police, but then entered an early plea of guilty, was remorseful, was of previous good character and had good prospects of rehabilitation.  
Objective seriousness and mitigating factors
20.	The seriousness of your offending arises from the fact that you knew you had struck Ms Lysette, you knew she was lying prone on the ground, you ought to have known she had been seriously injured and you did not know how long it would take for someone else to come to her assistance.  
21.	Your driving was careless, although you have not been charged with causing Ms Lysette’s death; nor has the prosecution suggested that her life might have been saved if you had stopped and rendered her assistance.  You thought that you had probably reversed a little too quickly (and had done so because you were afraid of Ms Lysette).  You knew you should stop, but failed to.  
22.	I accept that you were scared and in a panic, and that this was why you drove away (rather than, for example, because you were intoxicated or had been driving at extreme speed); that you must have known that you would be caught; and that you intended – eventually – to contact the police.  You did co-operate fully with the police once they found you.  You made clear and candid admissions.  
23.	The letters tendered on your behalf say that this behaviour was completely out of character for you.  I accept that it was: that in a moment of panic you made a poor decision, a reprehensible decision. I accept that your youth and inexperience contributed to you making this poor decision.  
24.	You have pleaded guilty, albeit after a contested committal and a sentence indication hearing.  However, the committal questioning focussed on a charge of dangerous driving causing death, which has now been withdrawn.  I therefore accept that you entered your plea of guilty at the earliest appropriate opportunity.  Moreover, you have pleaded guilty knowing that you were at risk of being sent to prison.  By doing so, you have accepted responsibility for your actions.  
25.	Your plea of guilty saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty.  This is particularly important at a time when the courts are still dealing with the after-effects of the COVID-19 pandemic.  I will reduce your sentence because of your plea of guilty.  
26.	I accept that your plea is demonstrative of remorse.  You have also expressed your remorse to this court and to Ms Lysette’s family.  I heard evidence from Rodney Lavin, a family friend who has known you for many years, who spoke about your remorse.  I accept that your remorse is genuine and sincere. 
27.	According to the various letters tendered on your behalf, the accident has had a profound and devastating impact on you.  Your demeanour in the dock appeared to confirm this during the sentence indication and plea hearings.  I am told that you at first withdrew from your community, before slowly beginning to re-emerge.  In these circumstances, I find there is very limited need for specific deterrence.  
28.	You are extremely fortunate to have strong support from your family, and from many members of the Traralgon community, a community to which you actively contribute.  You also have a previously unblemished character, a good history of employment and have undertaken counselling after the offending.  You have not engaged in any further offending. All of these things point towards you having excellent prospects for rehabilitation.  
29.	Most significantly, you are young.  You were 21 years old at the time of the offending.  You are now 22. This is a powerful mitigating factor that was absent from the three comparator cases I have referred to in which a CCO alone was imposed.  I am concerned that sending you to prison could cause irreparable harm to both you and your prospects for rehabilitation.  
30.	It is primarily because of your youth that I am prepared to impose a CCO without a term of imprisonment.  However, the orders I intend to impose are designed to punish you. The way in which you treated Sarah-Jane Lysette was wrong.  You will have to live with the consequences of what you did for the rest of your life, as will her family, who have lost someone they dearly loved.  In my view, a conviction is necessary.  
Consent to a CCO
31.	To impose a CCO, you need to consent to it.  If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a term of imprisonment.  I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent.  The following core conditions apply to all CCOs:
a.	You must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment.
b.	You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
c.	You must report to a Community Corrections centre within two clear working days from today. You will be reporting to Morwell Justice Service Centre.
d.	You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
e.	You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
f.	You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order. 
32.	I intend to impose the further condition that you perform 300 hours of unpaid community work over the period of the order.
33.	If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offences which are currently before me.  That would include imposing a term of imprisonment.  I will make an order that any breach by you of the CCO be brought back before me.  
34.	If you fail to comply with any direction of the Secretary a substantial fine can be imposed.
35.	Do you consent to the imposition of a community correction order?  [Yes].  
Orders 
36.	If you had not pleaded guilty, I would have sentenced you to a period of two and a half years imprisonment with a non-parole period of 18 months.  Instead I am imposing the following sentences:
a.	On charges 1 and 2, I convict you and impose an aggregate sentence of a three year community correction order, requiring you to do 300 hours of unpaid community work.
b.	On the charge of careless driving, I convict you and impose a fine of $2000.
c.	I order that your licence is cancelled, and that you are disqualified from driving for a period of four years from today. 
37.	I also make the disposal orders sought by the prosecution.