IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-01733

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
TOM VAN HOOYDONK		

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JUDGE:	HIS HONOUR JUDGE LAURITSEN 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 November 2021 	
DATE OF SENTENCE:	15 December 2021	
CASE MAY BE CITED AS:	DPP v Van Hooydonk	
MEDIUM NEUTRAL CITATION:	[2021] VCC 2148		

REASONS FOR SENTENCE

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Subject:			CRIMINAL LAW
Catchwords:	One charge of culpable driving causing death – standard sentence offence – sentence imposed lower than the Standard Sentence – alcohol and speed a factor in the accident 
Legislation Cited:		Sentencing Act 1991 (Vic)
Cases Cited:	Victorsen v R [2020] VSCA 248; Worboyes v R [2021] VSCA 169; Spanjol v R [2016] VSCA 317; Guseli v R [2019] VSCA 29; R v Verdins (2007) 16 VR 269; R v George Court of Criminal Appeal, unreported, 21 September 1990
Sentence:	The total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months’ imprisonment and cancellation of any licence or permit held to drive a motor vehicle and disqualification from obtaining another licence or permit for a period of six years.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms A. Moran 	Office of Public Prosecutions 	
			
For the Accused	Ms S. Lacy	James Dowsley & Associates 	

HIS HONOUR:

1	This is directed to you, Mr Van Hooydonk.  At the outset I intend to sentence you to seven years' imprisonment and will set a non-parole period of four and a half years' imprisonment.  I will declare 419 days of your pre-sentence detention as time served under my sentence. 
2	You have pleaded guilty to a charge of culpable driving causing death.  The charge contains two particulars of your culpable driving.  First, you drove negligently.  Second, you drove while under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle.  
3	The maximum penalty for culpable driving causing death is 20 years’ imprisonment.  This is also a standard sentence offence. 
Circumstances 
4	During the afternoon of 22 October 2020, you attended a house inspection in Seaford.  While waiting to be joined by your friend, Jaymes Pelka, you drank two stubbies of full strength beer.  You were joined by Mr Pelka and inspected the house.  You and he left and bought 24 stubbies of full strength beer and food. 
5	Both of you went to Brighton beach and met some friends and then to the St Kilda foreshore.  The group drank the alcohol. 
6	At about 10 pm you and Mr Pelka left the foreshore and went to a McDonalds outlet.  By then, you believed you had drunk 10 to 15 stubbies of beer and believed each stubby was the equivalent of 1.2 standard drinks.  You left McDonalds in a taxi which took you to where Mr Pelka’s Holden utility was parked in Elwood. 
7	In Elwood you told Mr Pelka you were 'right to drive' his utility, even though it was only the second time you had driven it.  You drove it into Point Ormond Road and then into Ormond Esplanade, heading south.  
8	While travelling south on Ormond Esplanade you asked Mr Pelka if you could 'accelerate' the utility, meaning accelerate it rapidly.  Presumably, he said yes, for you did so.  You told the psychologist, Mr Newton, you wanted to feel the power of the engine. After a while Mr Pelka said, 'that's enough'.  
9	You stopped accelerating.  However, there was a Nissan Pulsar at the side of the road, driven by Bhargav Solanki.  Mr Solanki was a Uber driver who had just made a delivery in Ormond Esplanade.  He started to perform a U-turn across Ormond Esplanade, intending to travel north.  You saw his car, started to brake and veered to your right.  However, the utility struck the driver’s side of that car, ultimately killing Mr Solanki.  The collision occurred at about 10.48 pm. You tried to help Mr Solanki.  You told Mr Newton: 
 ‘It's just so bad to see a body like that. The other guy was really bad from the beginning. All I could think is that I hope he is alive. I just wanted him to respond or come back or something and obviously ... I'm not an expert in first aid, but I knew not to move him and to do compressions. There was no breathing, but I kept going until the police arrived. I guess they took about five minutes to come.’
10	The police attended the scene.  You were arrested.  At 12.30 am the next day, a sample of your blood was taken.  Subsequent analysis revealed you had 0.133 grams of alcohol per 100 millilitres of blood. 
11	An analysis of the information contained in the airbag control module of the utility showed:  
(a)	Five seconds before the collision, the utility was travelling at 131 kilometres per hour and was under full acceleration;
(b)	Three seconds before the collision it was travelling at 148 kilometres per hour; 
(c)	Two and a half and two seconds before the collision it was travelling at 146 and 147 kilometres per hour respectively but there was no acceleration; 
(d)	Between 1.5 and 0.5 seconds before the collision it slowed from 145 to 
112 kilometres per hour under braking; 
(e)	At the point of collision, it was travelling at least at 103 kilometres per hour. 
12	The collision occurred in a south bound lane of Ormond Esplanade, just north of its intersection with Pine Street.  In the area of the collision, Ormond Esplanade is a straight, bitumen road, running mainly in a north-south direction.  There are two lanes in each direction.  The lanes are separated by solid double white lines.  At the time of the collision the weather was fine. The road was dry.  There was street lighting enabling good visibility. 
13	At the scene of the accident and later at a police station, you cooperated fully with the police, making full admissions.  Among other things, you told the police: 
(a)	you had drunk between 10 to 15 beers;
(b)	you felt intoxicated when you drove; 
(c)	you knew you were over the legal alcohol limit; 
(d)	you accelerated for about five to 10 seconds but the speed of the utility was 'right down' when the vehicles collided;
(e)	you thought the other vehicle came out of a side street, saying to police, 'it was literally like his car just appeared in front of me, there was no time'. 
14	Owing to your blood alcohol level, unsurprisingly a forensic physician, Jason Schreiber, considered you were incapable of having proper control of the utility when driving it.  
Patrick Newton
15	Patrick Newtown is a clinical and forensic psychologist.  At the request of your solicitors, he interviewed you on 9 November 2021.  
16	After a typically careful examination of your circumstances, Mr Newton diagnosed you as suffering from a severe alcohol use disorder at the time of the collision.  This disorder is in remission because you are in a controlled environment, being a prison.  
17	Although presenting as suffering from mild depression, Mr Newton was unprepared to diagnose a major depressive disorder or any other mental disorder then or at the time of the collision. 
18	What apparently struck Mr Newton was your immaturity over and above that expected of a person of your age:  your sense of identity was poorly formed; you are still in the process of developing your views on major life issues; and your awareness of your emotions was not well developed.  However, you are above average intelligence and this is a positive sign. 
Personal Circumstances 
19	You are now 25.  You were 23 at the time of the collision.  You are the youngest of four children with three sisters.  You grew up in Langwarrin.  Unlike many who appear in criminal Courts, you belong to a loving and supportive family.  
20	Your time at primary school was marred by your interactions with fellow students and teachers until your attention deficit hyperactivity disorder was treated. A side effect of the treatment caused you to gain weight.  At secondary school, this led to teasing and harassing by your fellow students and, in turn, to you drinking heavily and having further problems in your behaviour.  Despite all of your problems, you completed Year 12 successfully.
21	After leaving school you trained and qualified as a bricklayer, and largely worked in that field until your remand in custody in October 2020.  However, heavy drinking was part and parcel of many of the worksites and worsened an existing problem for you.  To get away from that environment, you are considering the possibility of other occupations. 
22	You have had three relationships, with the third starting when you were 19 and lasting a year.  
23	You started drinking alcohol at 14, heavily at 16, and very heavily from 18.  The level of your drinking was such that it has led to physical side effects, including blackouts. 
24	During 2020 you sought professional help for your drinking.  Unfortunately it had only a marginal effect upon the level of your consumption of alcohol.  Since the collision you have received further counselling from Mr Burrows, which focused on education about the effects of alcohol and the development of a relapse prevention plan.  You have also participated in alcohol related courses while in custody. 
25	However, alcohol has not been your only drug.  Since your late teens and until the collision you used cocaine and ecstasy regularly.
26	In relation to your mental health, you first sought psychological help in 2016.  You were suffering from depressive symptoms.  The counselling had a positive effect. But you stopped the counselling and relapsed to such an extent that you attempted suicide. You were prescribed an antidepressant medicine, Cymbalta, and Naltrexone to reduce your craving for alcohol.  For reasons known only to you, you stopped taking both medicines in March of 2021. 
27	You have used your time in custody profitably.  You work in a trusted role as a 'prison listener'.  You have started counselling with Mr Burrows. 
28	Your father gave evidence.  There were eight references submitted on your behalf, the majority of which were from family members.  Collectively, they describe an intelligent person with an impressively wide general knowledge.  They speak of the relentless bullying of you at school and your consequent low self-esteem.  They speak of you as a capable, hardworking bricklayer.  They speak of the unqualified support of your family and friends. Most importantly, in this context, they speak of your deep remorse. So much so that I can only conclude your expressions of remorse are genuine. 
Discussion 
29	The offence of culpable driving causing death is an offence for which imprisonment should be imposed unless an exception applies.  This is of academic interest because a non-custodial sentence would be entirely inappropriate. 
30	Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed.  They are to punish you to the extent and in a manner which is just in all of the circumstances; to deter you and other persons from committing offences of the same or a similar character; to establish conditions within which the Court considers that your rehabilitation may be facilitated; to manifest denunciation of the type of conduct you have engaged; and to protect the community from you. Generally a combination of two or more of those purposes arise in criminal cases.  
31	Each of those purposes is relevant to you.  My sentence must punish you justly, it must serve to deter you and others from the same or similar offending.  I must denounce the offence and protect the community from you.  Again, I must look to the issue of rehabilitation.  
32	Section 5(2) of the Act sets out various factors which, if relevant, I must pay regard. 
Standard Sentence Scheme 
33	As I said at the start of these remarks, the offence of culpable driving causing death is a standard sentence offence.  On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  This offence is one such offence.  The standard sentence for that offence is eight years' imprisonment.  What is the meaning of a standard sentence?  
34	First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you, and wholly by reference to the nature of the offending. Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing. 
35	In the case of Victorsen v R the Court of Appeal discussed the standard sentencing scheme.  At paragraph 18 it said: 
‘In Brown, this Court said that a judge
  when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:
•    is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
•    does not affect the established ‘instinctive synthesis’ approach to sentencing;
•    does not require or permit ‘two-stage sentencing’; and
•    does not otherwise affect the matters which the court may, or must,  take into account in sentencing.’
Guilty Plea 
36	You entered a plea of guilty to this charge at the fourth committal mention hearing.  This criminal proceeding started when you were charged with the offence.  In theory, it could have continued through the Magistrates' Court to a trial before a jury in this Court.  Your plea of guilty brought the proceeding to an early conclusion.  In terms of the stage of the proceeding when you pleaded guilty, it was early. 
37	On its own, devoid of any consideration of remorse, your plea of guilty has what is called a 'utilitarian benefit' to the criminal justice system.  In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed.  At the very least, it avoids the need for a trial, saving time and expense.  It allows other trials to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses. 
38	Due to the restrictions caused by the pandemic, the Courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in the case of Worboyes v R to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the Court’s judgment which shows how much emphasis is placed on pleas of guilty in this time of restriction: 
 ‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’
39	Your plea of guilty is evidence of your remorse, if such evidence was necessary.  Plainly, it requires a very significant discount on the sentence I would have imposed in its absence. 
Gravity of the offending 
40	The gravity of the offence is greater than the mid-range of this offence.  
41	First, you drove at night at a phenomenal speed in a 60 kilometre per hour zone in a residential area with intersecting streets.  You reached speeds which would be dangerous on the open road or freeways but are exceptionally so in a built up area. 
42	Second, your blood alcohol reading at the time of driving in Ormond Esplanade was 0.133 per cent.  One does not really need expert opinion to know that your blood alcohol level impaired your ability to drive.  In any event, that is the view of an expert, which I accept. 
43	Third, as the holder of a probationary P2 licence, you should not have had any alcohol in your blood when driving.  
44	Fourth, you should not have driven the utility at all because your type of licence did not permit you to drive a motor vehicle with a V8 engine. 
Moral Culpability 
45	Your moral culpability for the death of Mr Solanki is high.  You knew you had drunk too much alcohol and were well over the allowable limit.  You knew it was wrong to drive at such a speed.  A year earlier, you had been penalised for speeding with the excess speed being a fraction of the speed you reached on this occasion. 
Victim’s Unlawful Act 
46	Your counsel relied on the illegality of Mr Solanki executing a U-turn in Ormond Esplanade.  She referred me to Spanjol v R, where the Court set out two propositions which a sentencing judge will assume unless the contrary exists:
(a)	The offender was solely responsible for the manner of his driving; and 
(b)	The manner of his driving was the sole cause of the death. 
47	In your case it is the second proposition which your counsel raises; whether there is an additional factor, outside your control, which was also a material cause of Mr Solanki's death.  Although the existence of an additional factor does not reduce your moral culpability or the gravity of your offending, it may operate to reduce the sentence. 
48	It is true Mr Solanki should not have executed the U-turn.  It was unlawful because in doing so his vehicle crossed solid double white lines.  The expert, Detective Hardiman, assumed Mr Solanki saw your vehicle, and examined his decision to accept the gap in the traffic to perform the U-turn.  
49	Based on accepted scientific opinion, Detective Hardiman gave the opinion that drivers judge whether to enter an intersection or execute a U-turn primarily on how distant the other vehicle is and not on its speed.  Generally drivers assume the approaching vehicle is travelling at the lawful speed, even if it is travelling at a grossly excessive speed. Detective Hardiman gave the example of a 100 per cent increase in the speed of an approaching vehicle resulted in only a 30 per cent decrease in those drivers who accepted the distance between the respective vehicles as sufficiently large to render the proposed manoeuvre safe to execute.  
50	It is reasonable to assume Mr Solanki did see your approaching vehicle and accepted the separating distance as sufficient to enable his execution of a safe U-turn. A U-turn involves travelling across traffic progressing in different directions.  It is unlikely a driver would not look in both directions before executing it.  
51	If one looks at the factors leading to Mr Solanki's death, then his execution of the U-turn did make a material contribution.  Weighing it among the other factors making a material contribution, then it made a very small contribution. Much larger contributions were made by the speed at which your vehicle travelled and the adverse effect on your ability to drive caused by your consumption of alcohol.  For example, if your vehicle had been travelling at or near 60 kilometres an hour then Mr Solanki would easily have executed his U-turn.  Accordingly, Mr Solanki's U-turn warrants a very small reduction in sentence. 
Victim Impact Statement 
52	Mr Solanki was 25 at the time of the collision.  He was an Indian citizen.  He had been living in Australia for two years.  His parents live in India.  He has a sister, Rachna, who is living in Germany presently.  On 20 October 2021, Rachna made a victim impact statement.  The statement was in large part read out by counsel for the Director.  However, his sister read a poem to the Court.  She did so through an audio-visual link from Germany as she is studying there. The statement also contained two photographs of Mr Solanki and I was shown a very short video of him.  Ms Solanki spoke for herself and her parents.  
53	She spoke of her closeness to her brother and his brilliance as a student.  She spoke of the effect of her brother’s death upon her and her parents.  She described him as a second father to her. Even though his mother is angry at what you did to her son, Ms Solanki, believes her brother might not have had the same attitude, such was his nature.  
54	At the time of his death, her brother was on the cusp of a career as an engineer.  In all likelihood, he would have been married by the New Year. 
55	In her poem Ms Solanki speaks of her profound loss, fear and anxiety.  To her, life is unfair.  To her mother, it caused her to question her understanding of the nature of God. 
Criminal History 
56	You have never appeared in a Court to answer criminal or traffic charges.  However, on 13 July 2019, you received a traffic infringement notice for speeding.  Apart from a fine, your licence was suspended for three months.  The only significance of this infringement is that it had no deterrent effect on you on the night of the collision. 
Prospects of Rehabilitation 
57	Your counsel described your prospects of rehabilitation as good.  They are at least that.  At your age with your background, you are readily amenable to pro-social influences.  You have the very strong support of your family.  You are genuinely remorseful at your actions.  Your remorse started as soon as you realised the dreadful consequences of your driving.  You have spent a considerable time in custody and will spend longer.  This alone will have a strong deterrent effect on someone who has never been in custody.  You have behaved well in custody.  You are a hard worker.  You will return to the workforce after your release from custody. 
Verdins v R 
58	Your counsel did not rely on any of the limbs or propositions in the case of Verdins v R.  However, she did rely on the observations of Mr Newton of the likelihood of you experiencing more regular and intense episodes of mood disturbance unless given appropriate medical treatment and psychological counselling. Even with such treatment, you are likely to suffer depressive episodes from time to time.  Nowadays, routinely, Corrections Victoria will seek a copy of Mr Newton’s report, which I will provide unless your lawyers object.  If provided, I expect that treatment and counselling will be provided.
59	Your psychological state must be seen in the context of the significant restrictions experienced by persons in custody during the pandemic.  The future of restrictions is uncertain, given the emergence of variants of the virus. 
Sentence 
60	On the charge of culpable driving causing death, I will sentence you to seven years' imprisonment and I will set a non-parole period of four and a half years' imprisonment.  
Pre-Sentence Detention 
61	Excluding today, I declare the 419 days of your pre-sentence detention is reckoned as time served under my sentence. 
Disqualification from Driving 
62	I invited counsel to address me on the issue of the period of your disqualification.  I provided a copy of the judgment of the Court of Criminal Appeal in R v George and drew attention to s5(2AA)(a) of the Sentencing Act.  The existence of s5(2AA)(a) makes the punitive effect of the period of disqualification uncertain.  If you are paroled, the period may not have expired, but if you are not paroled the period may have expired before your release from custody. Ignoring as I must the question of parole or no parole, and having heard the submissions of counsel and the factors outlined in George’s case, I will cancel any permit or licence you hold to drive a motor vehicle and disqualify you from obtaining another licence or permit for six years. 
s6AAA Declaration 
63	Absent your plea of guilty I would have sentenced you to 10 and a half years' imprisonment, and set a non-parole period of seven and a half years' imprisonment.  
Standard Sentence 
64	My sentence is less than the standard sentence for the offence.  Although the gravity of the offence is greater than the mid-range and your moral culpability is high, I have dealt with the factors, mainly personal to you, which have resulted in the sentence. 
s89C Declaration
65	I find that the offence was committed while you were under the influence of alcohol which contributed to the offence. 
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