IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT SHEPPARTON
CRIMINAL JURISDICTION

CR 24-01234

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
CHRYSTLE KEMP		

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JUDGE:	HIS HONOUR JUDGE CHETTLE	
WHERE HELD:	Shepparton	
DATE OF HEARING:	6 November 2024	
DATE OF SENTENCE:	20 and 22 November 2024	
CASE MAY BE CITED AS:	DPP v Kemp	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1871	

REASONS FOR SENTENCE
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Subject:			Criminal Law Sentence
Catchwords:			Sentencing – dangerous driving causing death, dangerous driving causing serious injury.
Legislation Cited:	Crimes Act [1958], ss5(2H), s4(2)(o), s10A, s6AAA Sentencing Act [1991], Mental Health and Wellbeing Act [2022],
Cases Cited:			R v Verdins [2007] VSCA 102, Fariah [2021] VSCA 213, DPP v Neethling - [2009] VSCA 116 - 22 VR 466, R v Boulton [2014] VSCA 342
Sentence:			2 year Community Correction Order, special conditions; 250 hours of unpaid community work, 50 hours of any treatment and rehabilitation in mental health programs count against the 250 hours of unpaid community work, health assessment and treatment for psychological, neuropsychological and psychiatric treatment, mandatory 18 month drivers licence cancellation and disqualification.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions	
			
For the Accused	Mr P. Smallwood	Gallant Law	

HIS HONOUR:
1	Chrystle Kemp and you can stay seated until I get to the end of this, because it is going to take quite some time.  
2	Chrystle Kemp, you have pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury.  The facts of your offending are set out in Exhibit A of the prosecution amended plea summary.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.
3	Briefly stated, on 20 October 2023, you collected your five year old niece Savannah Kemp from her kindergarten in Shepparton at about 1.30 pm.  You placed her in the rear seat of your Toyota Landcruiser and engaged what is described as a lap sash factory seatbelt to secure her.  What that precisely entails is not completely clear on the evidence.
4	You drove out of town towards Dookie, intending to take photographs of Savannah in canola fields in the Dookie area.  At about 2 pm, you were driving east along Old Dookie Road, approaching its intersection with Boundary Road.  Old Dookie Road was a two lane bitumen road. At about 180 metres prior to its intersection with Boundary Road, you passed two stop sign advisory warning signs that faced your vehicle.  At the intersection with Boundary Road, two stop signs, one on either side of the road, faced you as you approached the intersection.  Visibility of traffic travelling along Boundary Road for vehicles travelling like you were, was restricted by tall grass and vegetation.  The stop signs and the advisory signs back down the road were, however, clearly visible.
5	At the time, the weather was fine, sunny and clear and the road was dry.  Your vehicle was travelling at about 81 kilometres per hour as you approached the intersection of Boundary Road, well below the speed limit of a hundred kilometres per hour.  At about 70 or 80 meters prior to the collision, or three and a half seconds prior to the collision, you braked, gently reducing your vehicle's speed to about 50 kilometres per hour.  It is unclear on the evidence why you did so.  The obvious inference is that you became aware of the approaching intersection, but did not see the stop signs.  You have no recollection of the collision or its lead up events.
6	I have watched a drive through conducted by Victoria Police subsequent to this collision.  The camera depicts the view that you would have had as you drove down Old Dookie Road towards Boundary Road.  The following observations can be made from that drive through.
7	Firstly, immediately after passing houses on the right-hand side of the road, there are two signs, yellow in colour with red hexagonal depictions of a stop sign and a black arrow on each side of the road.  These signs are clearly visible and as I said, are about 180 metres from Boundary Road.
8	Secondly, trees on the left-hand side and tall grass on the right-hand side obscured the driver's vision of any traffic on Boundary Road.  
9	Thirdly, the two stop signs at Boundary Road are reasonably visible.  The left-hand sign is affixed to a power pole, which to some extent provides an obscuring background, whilst the right-hand sign is more visible, mounted on a white pole.  Both signs are clearly visible, 10 to 40 metres at least from the intersection.
10	Fourthly, Old Dookie Road continues off into the distance on the other side of the intersection.  So, you can see the road going away from you, as you approach the intersection.  
11	Finally, there are no rumble strips or other warnings, other than the signs to which I have referred.  I was informed that the intersection has been changed since the collision and that there was no utility in me attending the scene for a view.  Photographs provided by the prosecution demonstrate that large red “reduce speed” signs have been erected since the collision.
12	Your vehicle entered the intersection of Old Dookie Road and Boundary Road without stopping and two vehicles travelling in opposite directions collided with each side of your vehicle.  
13	Ms Elodie Aldridge was driving her Ford Territory south on Boundary Road at about 68 kilometres per hour.  She struck your vehicle on the passenger side.  Ms Aldridge was 35 weeks pregnant.  She had just attended a medical examination that determined she was about to give birth to a healthy baby boy. After being trapped in a vehicle for about an hour, she was flown to the Alfred Hospital and underwent an emergency laparotomy and caesarean section.  Tragically, her baby was delivered stillborn.  Mrs Aldridge also sustained internal bleeding, a broken femur at the hip joint and a fractured wrist.  
14	You conceded that the injuries sustained in the loss of her foetus constitutes serious injury to Ms Aldridge.  The loss of an unborn child is included in the definition of serious injury in the Crimes Act.
15	The other vehicle in the collision was a Toyota driven by Nathan Frizzell in a northerly direction on Boundary Road and neither Mr Frizzell nor his passenger were seriously injured in the collision.
16	Savannah Kemp suffered severe chest, leg and neck injuries.  She died at the scene of the collision.  You also sustained serious injuries in the collision.  You were flown to the Alfred Hospital for treatment.
17	You were interviewed by the police on 28 November 2023 at the Shepparton police station.  You told police that you did not remember the collision, but did recall telling Savannah that you used to live in the house in the area and 'Talking to her in the mirror'.  You next remembered coming to after the collision.  You were highly distressed throughout that interview.
18	You told police about picking up Savannah and provided details of your family life, work and personal history.  You told police of your chronic medical issues and the medication you take.  You told police that you had not driven in the area of the collision for at least 10 months.  You said you knew that there were stop signs at the intersection with Boundary Road.  You said that you had picked Savannah up on other occasions and only a few days earlier had taken her to Echuca with you to pick up your Toyota Landcruiser.
19	You had not been drinking alcohol, were not fatigued, you were not using your phone, you were not speeding or otherwise driving irresponsibly.  You admitted that Savannah should have been placed in a booster seat, however, as I said this morning, there is no evidence that such a seat would have affected the outcome of the collision.  
20	At the time, you were 26 years of age, living in Shepparton and employed as a registered nurse.
21	This collision has had dreadful and far-reaching consequences.  The loss and pain resulting to so many people is indescribable.  Elodie Aldridge read her victim impact statement, Exhibit B.  She struggles to explain her pain and suffering.  She struggles to sleep and is highly anxious.  She feels guilty at surviving, when her son Remi did not.  She will never forget him.  Andrew Aldridge filed a victim impact statement, Exhibit D, and he described the joy of being told his son was healthy and soon to arrive, then the horror of the accident scene and seeing the injuries to his wife.  He attended hospital and held his dead son and waited whilst his wife received treatment.  He experiences fear and anxiety about his wife's safety and mental and physical pain of the loss of Remi.
22	Your sister Brianna Kemp, Savannah's mother, filed a victim impact statement, Exhibit E.  That document comprises eight pages of grief, anger and inconsolable suffering.  There are portions of her victim impact statement that are expressions of opinion and belief about you that are simply not admissible in this case and I have had regard only to the admissible portions of her statement and ignored the inadmissible parts.  She will always miss Savannah.  She feels like a stranger in her own home and is a shell of her former self.  She is drained by fatigue of grief and feels that she can never find closure or peace.  She is plagued by flashbacks and tortured by thoughts of Savannah.  She suffers nightmares, has sleeping issues, takes medication that leaves her fatigued and drowsy.  She states: 
'I feel as if each day I am on autopilot and just surviving.' 
Ms Kemp sees a psychologist and is medicated for severe depression and she suffers from PTSD.  
23	Her three boys have all been affected and damaged by Savannah's death.  She describes the way each have been affected and says each of them are not coping any better as time has gone on.  Ms Kemp worries for the safety of her other children and she has an irrational fears of others driving her children around.  She says it is too painful to contemplate a future without Savannah.  She says:
'No words could ever truly describe the loss of a child to a parent.  The emptiness that sits within you, the piece of you that no longer exists, the fact that you no longer go on in life as a complete person.
24	Daniel Taylor is Brianna's partner and Savannah's stepfather.  In Exhibit F, he describes the effect Savannah's death has had upon him.  He has seen a psychologist and has been diagnosed with post-traumatic stress disorder.  He becomes angry and reclusive.  He has moved work locations and has been unable to return to his Army Reserve duties.  He is socially isolated and consumed by intense emotions and feelings of loss.  He outlines the difficulties suffered by Brianna and each of her sons.  He struggles to be supportive of Brianna and the children.
25	Each of Savannah's brothers, Leyton, Caden and Riley, filed a victim impact statement, Exhibits G, H and J respectively.  They outline their feelings and memories.  They are scared, have difficulties at school and sleeping difficulties.  They are angry and overwhelmed at the loss of their sister.
26	Zoe Morris, a close friend of Brianna, filed Exhibit K.  She has witnessed the impact of Savannah's death on her best friend and upon her family and has suffered herself.  She has taken time off work and her children have missed school as a result of the impact of Savannah's death.  She states:
'There isn't enough words to truly describe the pain and grief it has caused.'
27	These victim impact statements demonstrate the intense pain and grief caused to so many by this immense tragedy.  Young lives have been lost.  Those close to those young lives are permanently traumatised.  The ripple effect of these young deaths is far reaching and the pain caused excruciating.  I take the relevant parts of the victim impact statements into account in sentencing you.
28	The offences to which you have pleaded guilty are serious criminal offences.  Dangerous driving causing death has a maximum penalty of 10 years' imprisonment and dangerous driving causing serious injury a maximum penalty of five years' imprisonment.  
29	Dangerous driving causing death is a category 2 offence.  The court must impose a custodial order, unless an exception to this somewhat harsh sentencing requirement is established under s5(2H) of the Sentencing Act [1991].  Those exceptions are (a) that the offender has assisted or given an undertaking to assist after sentencing law enforcement and authorities in the investigation or prosecution of an offence.  That is not relevant in your case.  (C) The offender proves on the balance of probabilities that (1) at the time of the commission of the offence, he or she had impaired mental functioning that was causally linked to the commission of the offence.  That has no relevance to your case.  Sub-section (C)(2) that the offender has impaired mental functioning that would result in the offender being subjected to substantially and materially greater than ordinary burden or risks of imprisonment.
30	Impaired mental functioning means a mental illness within the Mental Health and Wellbeing Act [2022], an intellectual disability within the meaning of the Disability Act, an autism spectrum disorder, or a neurological impairment, including but not limited to dementia.  Impaired mental functioning is defined in s10A of the Sentencing Act.
31	Section 4 of the Mental Health and Wellbeing Act [2022] defines mental illness as:
'A significant disturbance of thought, mood, perception or memory.'
but does state that a person is not considered to have mental illness by reason only of any one or more of a number of factors, which I will not go through, save and except for factor (o) which reads:
'That the person is experiencing or has experienced psychological distress.'
32	Your counsel submitted that this sub-section had application to you and I will return to that submission subsequently.
33	Finally, pursuant to s5(2H), there is exception (e).  That is, that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 Part 3.  That is, a sentence of imprisonment.  The authorities make it clear that this exception is extremely difficult to establish.  A combination of factors can establish this exception in appropriate cases.  I will again return to this issue subsequently.
34	Section 5(2H)(c) of the Sentencing Act provides that in determining whether there are substantial and compelling circumstances, the court must regard general deterrence and denunciation of the offender's conduct as having greater importance than other purposes set out in Exhibit 5(1) (2) or (b), must give less weight to the personal circumstances of the offender and other matters, such as the nature and gravity of the offence and must not have regard to the offender's previous good character, (other than an absence of prior convictions), nor an early plea of guilty, prospects of rehabilitation or parity of sentence.
35	In determining whether there are substantial and compelling circumstances under sub-s2H(e), the court must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence, a term of imprisonment should ordinarily be imposed and the court must consider whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.  I will return to the effect of these provisions and your counsel's submissions and those of the prosecutor in relation to them subsequently.
36	Turning to your personal history, you are now 27 years of age, being born in May 1997.  That history is extensively set out in Exhibit 6, the psychological report of Patrick Newton.  You grew up in the Shepparton area the second of four children.  Your childhood was overshadowed by a multitude of severe health problems.  The report of Dr Hook, Exhibit 2, sets out these issues.  Significantly, you have suffered from Crohn's Disease throughout your life.  That condition has caused you severe life disruptions and continues to do so.  
Mr Newton summarised the effect of Dr Hook's report at paragraph 15 of Exhibit 6.  His report as follows:
'Dr Hook's report outlines a range of other chronic medical conditions, including psoriasis, as well as ovarian cysts, abdominal adhesions, possible endometriosis.  These injuries to which Ms' - sorry - 'the injuries which Ms Kemp sustained in the collision on October 2023 have added further physical challenges, including chronic pain, nerve damage, affected her bladder, complex pelvic fractures and additional nerve damage affecting her right hip and leg.  She has been prescribed a range of medications for various conditions and has been under the care of a range of specialists.'
37	You attended school in Shepparton and missed a considerable time at school because of your medical treatment for your various problems.  You also experienced significant bullying at school, because of your medical complaints and their symptoms.  Your eczema, psoriasis, lip swelling and use of a colostomy bag after bowel surgery were particularly humiliating.
38	Subsequent to completing Year 12, you commenced a Bachelor of Education, before switching to a Diploma of Nursing.  You started a nursing degree, but that was interrupted by the Coronavirus restrictions.  You have worked as a nurse throughout Australia and in remote and Indigenous communities.
39	For reasons I cannot understand, AHPRA has suspended your nursing registration, as a result of you being charged with these offences.  On the available evidence, you are a competent, dedicated and effective nurse.  Your involvement in this collision has no relevance to your work as a nurse and the suspension does represent significant extra curial punishment, which frankly appears to me to be totally unjustified.
40	You had been in a relationship with Jace Calvary since 2022.  He continues to be supportive of you.  He provided a reference that gives me assistance as to your recent life.  That reference is part of Exhibit A. 
41	 All reference material attests to your sorrow, distress and the deep remorse you have for the pain and harm you have caused.  Your mental health has severely declined and you have difficulty sleeping.  You are said to have
'So much hate for yourself' 
and are devastated by the pain that you have caused others.  Your grandmother Maureen attested to your extreme remorse and your long history of personal illness.
42	As I said, you suffered serious injuries in the fatal collision and you still struggle with those injuries.  You sustained significant bone fractures, including complex pelvic fractures as set out by Dr Hook.  You underwent surgery to reconstruct your pelvis, involving fixation with metal plates.  You have been diagnosed with post-traumatic stress disorder, anxiety and a major depressive disorder.  You have difficulty sleeping and experience flashbacks and intrusive thoughts.
43	You continue to experience abdominal and pelvic pain that relates not only to your chronic Crohn's disease, but do abdominal adhesions, possible endometriosis and ovarian cysts.  You require surgical rectification that will see the removal of your fallopian tubes, with obvious fertility implications.  You have surgery scheduled for, as I understand, 16 January and 9 March of next year.
44	You have also experienced regular incontinence since the collision, resulting from nerve damage affecting your bladder and one of the surgeries you are scheduled to undergo is to implant a sacral neuromodulator, to hopefully address that issue.
45	You also sustained suspected nerve damage to your right hip and leg.  A nerve conduction test is yet to provide results as to that condition.  Currently, you remain severely gait impaired and are unable to walk or move without assistance.  You use two crutches to move about.  You require ongoing physiotherapy and hydrotherapy multiple times weekly, to address your mobility problems.  You are currently prescribed multiple medications to address your various issues.  Those medications include opioids and benzodiazepines.
46	Dr Hook provides a detailed account of your childhood medical issues, the effect of your medications and the ongoing nature of your medical issues.  Recently, you were found to suffer persistent colonic stricture of your descending colon, you have a lowered immune system and are prone to infection.  Dr Hook also outlines the mental health issues you have endured over the years.  In 2007, you were diagnosed with severe post-traumatic stress disorder and between 2018 and 2020, your mental health deteriorated further.  In that time, you made two suicide attempts.
47	Subsequent to this catastrophic collision, your mental health issues have been exacerbated.  Dr Hook concludes:
'As a result of her experiences and the trauma associated with the recent accident, Chrystle has been enduring profound grief, characterised by an overwhelming sense of sadness and emotional pain.  She has lost contact with her older sister Brianna and her three nephews, whilst her relationship with her younger sister and niece Sophie have been negatively affected.  Chrystle has been left out of many family events over the course of the past 10 months and other family members opt to invite or celebrate activities and events with Brianna, Eden and the children, leaving Chrystle to sit at home.  She continues to experience a multitude of symptoms, including insomnia, recurrent flashbacks, difficulty achieving restful sleep and pervasive feelings of anger, sadness, despair, anxiety and depression.' 
‘Chrystle is also struggling mentally to come to terms with such a huge change in her everyday life.  Prior to the accident, Chrystle was extremely independent.  She now lives with her mother, relying on her for financial support for living expenses and to assist with medical expenses, while also being required to take time to travel to Melbourne for so many necessary appointments’.
48	Psychologist Patrick Newton reported:
'Ms Kemp willingly completed the psychological testing requested of her.  That indicated a marked risk of problems with negative emotions, severe health concerns and intense social isolation.  Her profile, which also identified deeper issues of social detachment, negative, affective and suicide risk.  Her profile was similar and identified intense depression and anxiety, in the context of issues with identity, emotional regulation commonly seen in those suffering long-term trauma.  There were no indications she'd magnified her problems, or minimised her difficulties' - or yes -'Diagnostically' - sorry, I apologise - 'Diagnostically, Ms Kemp would meet DSM-5 criteria for post-traumatic stress disorder, major depressive disorder, recurrent moderate without' - sorry - 'major depressive disorder which is recurrent and moderate.  Ms Kemp's cognitive functioning shows the impacts of anxiety and depression she is experiencing in the form of difficulties concentrating and impaired capacity to focus.'  He reports:
'Both post-traumatic stress disorder and major depressive disorders involve significant impairment of mental functioning, hence they would both properly be considered mental illnesses under s4(1) of the Mental Health and Wellbeing Act [2022].  Specifically, Ms Kemp is experiencing a moderate to severe level of impairment of her emotions, a moderate level of impairment of her thoughts and a mild level of impairment of her perception and memory.'
49	Your counsel relied on this conclusion to found the submissions as to the applicable of s5(2H)(c)(ii), in your case.  I will return to it later.  Needless to say, I do not accept that opinion expressed as a matter of law by Mr Newton.  He continued:
'Ms Kemp's symptoms remain significant.  This reflects the absence of treatment directly focused on the impacts of her post-traumatic stress disorder.  Ms Kemp remains ambivalent about accessing such treatment, because she believed that any such treatment would risk the implication that she was focusing on her own wellbeing, rather than that of the people who were killed and injured in the collision.  While such concerns are reflective of Ms Kemp's broader acceptance of responsibility, the importance of treatment to her recovery is clear.'  He concludes:
'While some treatment programs are available in prison settings, which provide trauma-focused care to women with PTSD, the demand for such programs is very high.  Consequently, there are long waiting lists and relatively limited opportunities for those who require such assistance.'
50	Your plea was adjourned, so that the issue of medical services available in prison could be explored.  Exhibit M is a letter from the Justice Health.  That letter was general in nature, but did make it clear that your scheduled surgeries would not proceed at the given dates if you were imprisoned.  They may proceed at a later date.
51	Based on the opinions of Dr Hook and Mr Newton, your counsel submitted that the exception to mandatory sentencing set out in s5(2H)(c)(ii) had been established in your case.  It was submitted that you had impaired mental functioning that would result in you being subject to a substantially and materially greater than ordinary burden and risks of imprisonment.  That is, because of your post-traumatic stress disorder and recurrent major depressive disorder.
52	Mr Smallwood relied upon Mr Newton's opinion previously referred to and to his report, which stated:
'Whilst it's a truism that almost any prisoner will experience some distress and sadness when incarcerated, Mr Kemp's experience is materially and substantially more severe than is typically, encompassing not only active symptoms of PTSD and depression, but also ongoing effects of significant physical conditions and serious injuries.  They are both likely to be difficult to treat and be subject to exacerbation within a custodial environment.'
53	Clearly, Mr Newton has included physical injuries in his conclusions as to your mental condition.  As I said during your plea, I am not satisfied that you suffer from the type of impaired mental functioning that would enliven s5(2H)(c)(ii).  The nature of conditions contemplated by the Act are demonstrated by the conditions stipulated in s10A, intellectual disability, autism and neurological impairment.  Section 4(2)(o) specifically excludes a person experiencing psychological distress.
54	In my view, your psychological issues falls within that description of psychological distress, rather than mental illness, despite Mr Newton's report.  It is common for people about to be sentenced by this court to suffer from PTSD issues, depression and although I do not downplay the significance of your psychological health, I do not find that your issues satisfy me that the requirements of s5(2H)(c)(ii) have been established.  I do accept that the 5th and 6th limbs of Verdins apply in your case and there should be some moderation of any prison sentence, to reflect those principles.
55	The reference material, psychological reports and medical material and your letter to the court, Exhibit 9, all demonstrate you to be experiencing profound and genuine remorse to your offending.  You said at the conclusion of your letter:
'I wish I could talk to my sister and the boys, but Brianna hates me so much and I don't blame her for hating me, as I also hate myself.  I never meant for this to happen and many times I've tried to put into words a letter to apologise to her, but the words just don't come, but instead, the tears, the grief are just overwhelming.  It's all too hard and nothing I say will make their lives any better.  I'm deeply sorry for the accident.  I do not know how it occurred and I wish I could change the past.  If I could, I would.  I just wish it had been me that died that day, not Savannah.  They will live with this trauma and the loss their whole lives, as will I and for that I am profoundly sorry.'
56	Your remorse is further demonstrated by your pleas of guilty.  You have accepted responsibility for your action, where in my view you had an arguable defence to the charges.  You simply would not contest the allegations and always accepted responsibility for the tragic loss of Savannah and Remi.  In an understandable way, you want to be punished.
57	Your counsel's secondary submission was that a combination of factors present in your case demonstrates that there are substantial and compelling circumstances that are exceptional and rare and justify not imposing a custodial order.  Section 5(2H) (e) is enlivened in this case, he submitted.  He relied upon:
58	Firstly your psychological issues, your PTSD and major depression, as outlined by Mr Newton, and to which I have already referred.
59	Secondly, your medical conditions that would make you or render you dependent on others.  They include:
(a) a moderate to severe gait impairment. You cannot walk properly, require physiotherapy and hydrotherapy regularly; 
(b) You have significant bone fractures; 
(c) You suffer from incontinence;
(d) You have chronic pain; 
(e) You have suspected nerve damage; and
(f) you suffer abdominal and pelvic pain, requiring surgery.
60	Thirdly, he submitted those conditions to which I have just referred, together with the suspension of your nursing registration, constitutes significant extra curial punishment for this offending.
61	Fourthly, he relied upon your profound and genuine remorse and overwhelming grief.
62	Fifthly, he relied upon the absence of aggravating features, such as speed, alcohol or erratic driving.  It is submitted that your moral culpability falls at the low level for offences of dangerous driving causing death.
63	I accept these submissions.  I have no doubt that the burden of imprisonment for you is such that your physical and psychological injuries alone would establish rare and exceptional circumstances that are substantial and utterly compelling.  Your inability to walk would make custody intolerable.  Your physiotherapist Vanessa Flores reported in Exhibit 12:
'At present, as at 4 November of this year, when I saw her last, Ms Kemp presented with ambulating independently with the use of bilateral forearm crutches, moderate difficulty traversing steps, kerbs outdoors in the community using bilateral forearm crutches, limited right hip movement and a range of muscle weakness and guarding with affected function, a risk to fall due to difficulty traversing kerbs, steep, prone to tipping, impaired balance and an impaired reactive response.'
64	And you still have still reduced functional capacity in daily tasks with mild to moderate difficulty with dress, self-care, going in and out of cars, transfers from bed to sitting, to standing, standing balance, walking going up and down steps and difficulty with right hip motion and right hip muscle weakness.  
65	Your chronic Crohn's disease would make prison life a misery.  Pain, risk of infection and food issues would be significant.  
66	Your incontinence would also make prison life almost unbearable.
67	The other factors submitted by Mr Smallwood would add to these conclusions.  These are, in my view, rare, compelling and unusual circumstances and they are superimposed in what I accept is your lower level moral culpability.  Your dangerous driving is constituted by an inexplicable failure to see the stop signs and entering the intersection without stopping.  Parliament intends that those who commit the offence of dangerous driving causing death usually go to prison.  It recognises, however, that rarely and exceptionally a court will be justified in not imposing such a sentence.
68	In my view, yours is one of those rare and exceptional cases.  The consequences of your failure to stop are catastrophic.  Two young lives have been needlessly lost, but nothing this court can do can change that.  The tragic consequences of your actions cannot dictate the punishment.  Justice is not vindictive.
69	Principles of general deterrence are always important in cases such as these.  Road users need to know that if they drive dangerously and kill someone, they are almost certain to go to prison, but the law recognises that in rare and compelling circumstances, exceptions to that principle have to be made.  You have already been severely punished for your crimes.  Nothing this court can do to you will punish you as much as you punish yourself.
70	Sally Davis in her reference accurately summed up, in my view, this case.  She says:
'Chrystle didn't set out to have an accident.  It was a tragedy that occurred from a momentary time of inattention to the road.  From the information we have, she was not speeding, hooning, or being stupid on the road.  She set out for an afternoon of fun with her niece, who she adored.  Chrystle will live with the guilt of this forever and it impacts on her and her family.'
71	Your mother Michelle Simonas provided a reference as part of Exhibit A, which is also in a way really a victim impact statement.  She is obviously Brianna's mother and Savannah's grandmother.  She has been at the centre of the anger, recrimination and hatred engendered by these tragic deaths.  She states:
'Where does a mother and grandmother stuck in a family tragedy begin?  My heart is broken and my family is torn apart and life for the last year has been full of grief, medical appointment and court appearances, with so much stress and anxiety for all our family.  As a mother and grandmother, my heart breaks for Elodie and her husband Andrew and their son and the loss of their family has suffered and the loss their family has suffered from this accident.  Words cannot feel how I feel for them also.  20 October 2023 is a day etched in the memory as to the worst day of my life, with my beautiful granddaughter Savannah being killed in a car accident, my daughter Chrystle was physically injured and my daughter Brianna and her three boys have been devastated at the passing of their daughter and sister.  This was not an intentional act, it was an accident.  Chrystle didn't set out to have an accident and cause any harm.'  Later she continues:
'Chrystle suffered immense injury to her pelvis that is causing her severe problems 12 months later.  The doctors initially said she might be able to walk within three months, but we're still 12 months down the track.  She's unable to walk without physical aids, her crutches.  She suffers excruciating pain in her lower back and hips and is waiting to see a pain specialist for better pain management.  She may never walk again without the use of walking sticks.  She's lost all strength in her lower body to enable her to get off the crutches.  She may never again retain the proper use of her legs.  Chrystle is a very special person though, in that no matter how much she is currently suffering, she puts the needs of others first.  She is always asking about Brianna and the boys and seeking to find a way to assist me to care for them, always telling me to leave her at home and to go and spend time with Brianna and the boys.  Chrystle encourages me in my darkest moments to try and help me.  She is concerned for my health and that of her father Les and always apologising for the pain she caused.'
72	She concludes a thoughtful reference with:
'The impact of myself as a grandmother and a mother is gut wrenching and my whole family is divided in its ability to heal.  We'll never get over our grief, but we need to learn to move forward now in a different way and never to forget the memories and love of our bright and vivacious Savannah.'
73	The Court of Appeal has indicated in Fariah [2021] VSCA 213, that whether substantial and compelling circumstances that are rare and exceptional exist in a particular case, is an evaluative judgment for the judge to make, once the relevant underlying facts have been established in accordance with settled principle.
'The court emphasised within the context of s5(2H), paragraph E is a residual category of limited scope.  On my view, it's very - it's a very high hurdle that will not often be surmounted.  The legislative norm is that category 2 offences will attract an immediate term of imprisonment.  Importantly, CCOs, or a combined CCO and term of imprisonment under s44 are not available.  In many cases, given the type of offence within category 2, a term of imprisonment will be inevitable.  In some cases, the operation of 5(2H) will be harsh.  In other cases, a term of imprisonment would be entirely unjustified, counterproductive from the point of view of rehabilitation and work a serious injustice.  This may be particularly so for young offenders.  To a degree, paragraph 2(H)(e) guards against the risk of injustice, but the stringency of the test cannot be avoided.  Within the bounds of reasonableness, whether in the combination of the applicant's circumstances amounted to substantial and compelling circumstances that are exceptional and rare, was for the judge to determine.'
74	I have given long and considered thought to the evidence in this case.  I have had regard to the prosecution oral submissions and the prosecution written submissions, Exhibit N. The prosecutor submitted that your issues are not rare or exceptional and further submitted that your moral culpability was increased by your failure to see the warning signs, your prior familiarity with the intersection and the area and the failure to have Savannah in a booster seat and harness.
75	I accept that your moral culpability is not at the lowest level, but it clearly is, in my view, at a low level.  As discussed on your plea, your admitted dangerous driving is entering the intersection without stopping.  You did so because you were negligent, not acting deliberately, wilfully or recklessly.  I have also been acutely conscious to ensure the principles of general deterrence are significant in cases such as yours are properly reflected in this sentence.
76	The Court of Appeal has often referred to the decision of Neethling, where three principles were set out and often repeated.  General deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.  A person who kills and injures another while driving dangerously is likely to receive a significant term of imprisonment and the sentence which is imposed must take into account variations in the moral culpability of the person responsible.  I have been acutely aware of those principles in your case.  However, general deterrence cannot swamp other relevant sentencing factors.
77	Now, I have been conscious that your actions caused the death of Savannah and the loss of Remi caused serious injury to Mrs Aldridge.  However, balancing all the relevant factors in this case, I am satisfied that yours is one of those rare and exceptional cases where substantial and compelling circumstances dictate that the court is justified in imposing a sentence other than a custodial order.  When I look at the sentencing options available, this court has, the Court of Appeal has made it clear in the case of Boulton, that a properly structured community correction order can properly address all sentencing factors where otherwise a term of imprisonment would or could be imposed.
78	Such a community correction order is punitive in nature, as well as rehabilitative.  I propose to have you assessed for suitability for undergo such an order and if you are suitable and I have no reason to doubt that you will be, I propose to impose a community corrections order, on each charge, for a period of two years and I am going to order that you perform 250 hours of unpaid community work, bearing in mind your physical limitations.  You will undergo assessment and treatment for any mental health issues you may have and undertake programs to reduce reoffending, for example, a road trauma course.
79	In arriving at this disposition, I have had regard to your early pleas of guilty, your excellent prospects for rehabilitation, your lack of prior convictions, your profound remorse and your otherwise good character.  You must be punished for your crimes, but the punishment can properly be imposed by a community corrections order.
80	Now, I propose to release you on bail to attend an assessment for your suitability to undergo such an order at 2 pm tomorrow at the Shepparton Justice Centre at 404 to 415 Wyndham Street, Shepparton and I propose, I will have a report as to your suitability and I propose to impose sentence at 2 pm on Friday.  It is obvious from what I have said what that sentence will be, provided you are assessed as suitable for such a disposition.  I am also required to cancel any driver's licence you might hold and disqualify you from obtaining a licence for 18 months and it is from today, is it, Mr Teo?
81	MR TEO:  Yes Your Honour.  From the day of sentence, Your Honour.
82	HIS HONOUR:  Is it from - well, yes, all right.
83	MR TEO:  So ‑ ‑ ‑
84	HIS HONOUR:  I'll impose - it'll be for 18 months.  It hasn't already been cancelled?
85	MR TEO:  No, Your Honour.
86	HIS HONOUR:  All right.  It'll be for 18 months from Friday, from when the sentence is imposed.
87	MR SMALLWOOD:  Yes Your Honour.
88	HIS HONOUR:  Are there any other orders required?
89	MR TEO:  No.
90	MR SMALLWOOD:  Six triple A.
91	HIS HONOUR:  Pursuant to s6AAA of the Sentencing Act [1991] I indicate that but for your pleas of guilty I would have imposed a higher sentence.  I just simply can't quantitate that there'd ever be a situation where that would occur.
92	MR SMALLWOOD:  No.
93	HIS HONOUR:  All right.
94	MR SMALLWOOD:  As the court pleases.
‑ ‑ ‑
On 22 November 2024
96	HIS HONOUR:  Ms Kemp, I have had you assessed for your suitability to undergo a community corrections order, and you have been found suitable for such a disposition.
97	As part of the conditions of that order I am going to order that you undergo unpaid community work, and that, I understand, is somewhat of an issue given your physical disabilities but they have found a way that you can in fact do that provided you get a certificate from your doctor that you are fit for that work.  So in that regard I am sure that Dr Hook will be able to provide you with a certificate that will help in that regard.
98	I indicated the other day that I was looking at programs to reduce the risk of re-offending, and they included road trauma courses and things of that sort.  Corrections, I think correctly, have recommended that such a course not be engaged in because it is likely to further traumatise you.  You have undergone, in my view, a substantial trauma course of your own, you do not need another one.
99	So there will not be any order in that respect, but I do propose to impose a condition that you undergo treatment and rehabilitation in relation to your mental health problems, and they will look for ways to assist you in that regard.  They correctly make the point that most of the therapy and steps that you need you have already undertaken or are in the process of undertaking.
100	Now, do you understand the nature of what I am proposing the order will be, and it is going to be for two years.  You need to understand that if you breach this order by non-compliance or if you re-offend in any way, you get brought back before this court and re-sentenced.  Do you understand that?
101	ACCUSED:  Yes.
102	HIS HONOUR:  And do you consent to undergo such an order?
103	ACCUSED:  Yes.
104	HIS HONOUR:  Alright.  The formal sentence of the court is that in respect to both charges you are convicted and in respect to both charges you are released on a community corrections order for a period of two years.  There will be special conditions of that community corrections order that you undergo 250 hours of unpaid community work, and I will order that 50 hours of any treatment and rehabilitation taken by you in the mental health programs can count against the 250 hours of unpaid community work.
105	The other special condition is that you must undergo health assessment and treatment for psychological, neuropsychological and psychiatric treatment as assessed by the regional manager.
106	I cancel any licence to drive a motor vehicle you have, I am obliged to do so under the legislation, and you are disqualified from driving a motor vehicle in the State of Victoria for 18 months from today.
107	Mr Smallwood will explain to you, if you drive whilst disqualified you risk going to prison.
108	So would you take the order down with Mr Smallwood and have her sign please.
109	MR SMALLWOOD:  As the court pleases.
110	HIS HONOUR:  You are required to report to the Shepparton Justice Centre at 307-331 Wyndham Street.  And you have to do that within two working days, so by Tuesday night, but go and see them on Monday.
111	Are there any other orders required, Mr Teo.
112	MR TEO:  No, Your Honour.  
113	MR SMALLWOOD:  No, Your Honour.  
114	HIS HONOUR:  Alright, I will adjourn.
115	MR SMALLWOOD:  As the court pleases.