IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
Case No. CR-18-01251

THE QUEEN		
		
v		
		
JORDAN JAMES		

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JUDGE:	G. MULLALY 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 April 2022 and 30 May 2022	
DATE OF SENTENCE:	30 May 2022	
CASE MAY BE CITED AS:		
MEDIUM NEUTRAL CITATION:	[2022] VCC 807		

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords: 	Dangerous driving causing death – Dangerous driving causing serious injury – Individualised sentencing – Level of moral culpability – Objective dangerousness of the driving – Degree of alertness to risk reasonably expected in the circumstances – Dangerous driving at the lowest end – Mitigatory factors – Intellectual disability – COVID times – Delay – Specific deterrence – General deterrence.

Legislation Cited:  Criminal Procedure Act 2009 (Vic) s 207; Sentencing Act 1991 (Vic) s 5(4) and s 6AAA; Disability Act 2006 (Vic).

Cases Cited:  Stephens v The Queen [2016] VSCA 121; Woldesilassie v The Queen [2018] VSCA 285; Pan v The Queen [2020] VSCA 42; R v Towle [2009] VSCA 280; Lee v The Queen [2021] VSCA 156; Director of Public Prosecutions v Williams [2018] VCC 1343; DPP v Nicholson (Unreported, County Court of Victoria, Bourke J, 16 April 2020); Director of Public Prosecutions v Calf [2020] VCC 353; R v Bugmy [2012] NSWCCA 223; Muldrock v The Queen (2011) 244 CLR 120; Worboyes v R [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; 46 VR 308; Wilson v The Queen [2022] VSCA 2.

Sentence: Community Corrections Order for 4 years and Community Corrections Order for 2 years (concurrent).
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr J. Lewis	Office of Public Prosecutions	
			
For the Accused	Ms G. Connelly	Greg Thomas Barristers & Solicitors	

HIS HONOUR:

1	Jordan James, on 26 April 2022 I granted your application for a sentence indication.  I indicated that should you plead guilty to dangerous driving causing death and dangerous driving causing serious injury, pursuant to section 207(1)(a) of the Criminal Procedure Act,  I would impose a sentence of a specified type being a community corrections order alone.  You, Mr James, then pleaded guilty on arraignment.
2	The hearing of the plea and the imposition of sentence was adjourned to today in order for more material to be secured and to allow the victims and their families to be present and read their victim impact statements.  The two charges arise from a collision on the West Gate Freeway on the afternoon of 
the 16 March 2017.  The collision was between a heavily ladened truck driven by you, Mr James, and a small car driven by Christopher Hoeboer.  
3	That collision caused Mr Hoeboer's death and serious injury to his wife, and passenger, Rebecca Hoeboer.  I will elaborate shortly on the details of how the collision occurred and the dangerousness of your driving, but at this point I want to focus on the catastrophic consequences for the victims and the victims' families.  The most basic facts to give context are that on that afternoon you were driving in the left hand lane on the West Gate Freeway at a point near the Forsyth Road exit.  The long running and substantial freeway road works impacted on those wishing to use that exit.  A long line or tailback of cars wishing to exit stretched into the left hand lane of the freeway.
4	There was no warning of the tailback of cars, thus as Mr Hoeboer drove along the left hand lane he was forced to a sudden stop.  The vehicle travelling behind Mr Hoeboer was a large double trailer tipper truck.  The driver of that truck was faced with a dire situation.  He moved quickly to his right as he could never have pulled up in time.  He missed but just missed the Hoeboer car and the line of traffic in front.  
5	You, Mr James, were following the truck and did not allow or keep sufficient distance between your truck and the larger truck in front of you.  When that vehicle pulled hard and quickly to the right you did not have enough time to stop or avoid the line of cars.  You hit Mr Hoeboer’s car with massive force.  The consequences of this collision were catastrophic.  Christopher Hoeboer was killed instantly. 
6	Ms Rebecca Hoeboer sustained serious injuries, being an open fracture to her neck, dislocation of the right shoulder and multiple fractures to the bones of her right arm and a serious degloving injury to her skull and a closed head injury which resulted in amnesia.  She spent weeks in hospital where she underwent surgery and lengthy rehabilitation.  On any measure her injuries were serious.  Her victim impact statement makes clear the ongoing impact of the physical injuries as well as the deep and enduring psychological scars.
7	I did say in my reasons for granting the sentence indication application and I repeat here, any sentence the court imposes cannot be seen as the measure of the life of Christopher Hoeboer.  His life to those who loved him is too precious to somehow be seen as an equivalent to the court's sentence.  His place in and his impact on the lives of his wife, his parents, his sibling, his parents-in-law and sister-in-law and all who knew him will endure.  Sadly their grief will also endure.  It is clear from the victim impact statements that he is deeply and daily missed.  The impact of the tragic events on the West Gate Freeway over five years ago continue to substantially effect Rebecca Hoeboer in particular, as well as her parents and Christopher Hoeboer's parents.  The impact on them will be lifelong.  
8	My sentencing of you, Mr James, cannot return things to the way they were before.  However, the loss of the precious life and the causing of serious injury will not be forgotten as this process of sentencing unfolds and concludes.  Christopher Hoeboer was in the prime of his life.  He was literally blossoming from early more introverted years to being a loving, generous, committed husband, a dynamic nurse with plans for his career.  
9	He was a volunteer in the St Johns Ambulance.  He was a giver to our whole community.  He was a gentleman.  
10	He and Rebecca Hoeboer had met at university studying for their careers in nursing.  They developed a deep bond.  Their relationship, their shared careers, all they did together led Ms Hoeboer to say they were each other's soul mates.  They had lived together for many years and had married about 19 months before the collision.  They had bought a house.  They had plans to start a family.  They were happy, very happy it seems, and they were able to spread the happiness or infect others with joy.
11	The utter devastation caused by the loss of Mr Hoeboer's life and the change to Ms Hoeboer's life was made clear in the heartfelt victim impact statements that were read to the court and tendered on the plea.  I cannot do justice to these victim impact statements by quoting short excerpts but I have read and re-read them again.  By way of some example of what Ms Hoeboer has suffered and feels right now she wrote:  'I am utterly destroyed.  I have lost so much that I do not know if we would ever be able to list it all.  Chris and I did everything together.  We met at university’.
12	She goes on, as I said, to explain how close they were and how they were soulmates.  She wrote:  
Being together with Chris I knew that we may never have been rich but I knew for certain that we would always be happy because we had each other and that was all we needed.  He loved me for me exactly as I was.  He brought colour to my life and taught me how to smile and laugh.  Now it is all gone black and white and I still struggle to smile.
13	She writes at becoming isolated without networks, friends, work colleagues.  It is now a hard and different life for her.  She speaks of her own injuries.  They were very debilitating and now she has chronic pain, especially in her right arm but generally.  She used to be active at gym, swimming and walking with her husband but now that is all very hard if she is able to do it at all.  But she has and it is understandable, deep psychological difficulties that need treatment and care.
14	All aspects of her life have been impacted.  Her finances are a struggle.  Her career opportunities have been lost as she finds it difficult to return back to the sort of work that she loved.  She misses her husband.  They were always happy and she misses him every day.  Mr Tony Hoeboer wrote, 'Losing a child is a traumatic experience a parent should never have to face'.  He feels at times that he has become an emotional wreck.  He loved his son in many ways and he writes, 'I feel devastated that something so precious to me was taken in a matter of seconds’.
15	He too was enjoying how family life was developing with his son married, establishing his own career and family, his new house and all the grandparents, or potential grandparents, were looking eagerly forward to the day when grandchildren arrived.  Mr Hoeboer suffers from many triggers.  He is himself a nurse and worked on the State Emergency Services and he cannot participate either in work, or in that voluntary work, because they trigger such deep emotional pain.
16	He does not enjoy much, he says, but he does not want to be a burden to people. I am sure he is not.  Guilt and frustration are words that come to his mind.  However none of it of course, as he knows, is anything he could have done anything about.  But he has suffered to the point of needing professional psychiatric help.  He spoke to his son at the end saying, 'I would do anything possible in this world to have you back with us'.
17	Mrs Marianne Hoeboer, Christopher's mother, says the death of her son affected every part of her life.  She just does not enjoy things the way she used to.  Relationships become strained, friendships and people not realising how difficult and lifelong coping with the loss of someone so dear is.  She has difficult physical feelings of just forever tired and exhausted.  Her mental health has deteriorated.  She has lost her career and she was looking forward to seeing her son continue to develop as the man he was and as the nurse he was and as the volunteer he was.  She was looking forward specially to seeing him become a father and she herself as a grandmother which she was looking forward to.  She misses his smile and his laugh.  She misses him deeply.
18	Mr Peter Smith also grants that he misses Christopher as much as a son.  ‘It hurts every day’.  When his daughter Rebecca married Christopher it was one of the proudest moments in his life.  They were married for the time they were but they lived with Peter and Kerry Smith for six years before they saw him become from a younger man to someone who was very much blossoming.  He worries about his daughter and how it has affected her, how isolated she us and how fragile her mental health is.
19	He feels frustrated and angry at the unfairness of it all.  These are not normal emotions it seems to me for Mr Smith who was moving through his career towards retirement.  That is, to feel angry and frustrated and he also now feels isolated.  Ms Kerry Smith wrote just how impressive Christopher was when she met him and then watched him grow into a confident gentle man who was a wonderful for her daughter.  She said her daughter was so radiant on the day that she was married and it made her heart, her mother's heart sing.  She is worried about the future for her daughter.  Caring for her daughter has taken a great toll, in particular on her own mental health and relationships.  She says her own mental health is deteriorating.  Her career has been lost.  Life is now full of painful memories.  
20	Bronwyn Smith, Rebecca's sister also speaks about how losing Christopher has changed their lives forever.  She speaks of him in the way that others have as a generous gentle man.  She says that she believes the whole community has suffered a loss as he will no longer be able to continue his voluntary work in the St Johns Ambulance and as a nurse.  He would have been someone as his wife Rebecca said, who would have been at the forefront as the community struggled through the COVID pandemic.  Bronwyn Smith is worried for her sister's future.  She will care for her but she is concerned.
21	As I said, I cannot do justice to all that was set out in those heartfelt victim impact statements.  But as I made clear in the sentencing indication ruling, I must follow and apply the sentencing laws of this State, in particular the concept of individualised sentencing.  I must examine what you did, Mr James, what the impact of your crimes has had as evidenced by the victim impact statements.  I must also consider who you are, your upbringing and what the effect of that is upon you as you became an adult, what impact they had upon the crime that you committed and others that you have committed.  I have to look generally at what the future holds for you.
22	In assessing what you did I have read all the evidence, the reports of experts and the cross-examination of those experts.  I have viewed many times the dashcam and rear view footage of this dreadful collision.  I have considered the guidance given by the superior courts to sentencing judges when we come to deal with dangerous driving causing death and dangerous driving causing serious injury.  That guidance requires me to focus on the moral culpability and the objective dangerousness of the driving conduct.
23	So in assessing the seriousness or gravity of this particular set of circumstances I must look at the level of your moral culpability, particularly of the risks or dangerousness involved as you drove along the West Gate Freeway, back in 2017, too close to the truck in front.  The Court of Appeal in 2016, in the important decision of Stephens said:
Driving will be dangerous where there is some serious breach of the proper conduct of the vehicle so as to be in reality and not in speculatively potentially dangerous to others.  The driving must have some features that subtext the public to some risk over and above the ordinary associated with driving a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.  A court's assessment of the dangerousness of the driving will be informed by the extent of the risk which the driver created as well as the extent of the potential harm should the risk materialise.
24	In the following year, 2018, that is after this collision, the Court of Appeal again referred to these matters in the case of Woldesilassie, where it said in reference to Stephens: 
Plainly as the court noted in Stephens, the offence of dangerous driving may encompass a very wide range of conduct.  In determining the appropriate sentence it is necessary to take into account both the objective dangerousness of the offender's driving and the moral culpability of the offender.  In particular, it is recognised that the moral culpability of the driver is of central importance in the sentencing task.
25	The appellate cases have emphasised that these tragic cases are not to be dealt with in some formulaic way as if a checklist of factors is determinative.  Thus the absence of more aggravating features does not operate to mitigate sentence.  Rather, the gravity of what was done is to be derived from the driving conduct that shows that an accused in some specific way fell short of what was, or is, to be expected of a responsible driver in the circumstances of that day and that moment.  The appellate courts of late have also required sentencing judges to consider and factor in, as a matter potentially significantly lowering moral culpability, any circumstances outside the control of the offending driver, such as the inherently dangerous road design or circumstances at the time.  I refer here to the decision of the Court of Appeal in Pan v The Queen.
26	Of particular relevance in this case is the general principles expressed in the appellate cases, that is, as set out in particular in the matter of R v Towle.  That was a case involving six deaths and four instances of dangerous driving causing serious injury, all to young pedestrians walking on a country road in Mildura.  The court said:  'The question in each case is what degree of care and in particular what degree of alertness to risk was reasonably to be expected of the driver in the circumstances'.  
27	That fundamental set of questions is particularly relevant to the circumstances in this case.  Before outlining in more detail the key circumstances of the driving behaviour in this case I am also well aware that the appellate cases have emphasised that over finessing levels of moral culpability is to be avoided.  The Court of Appeal in the case I have referred to Woldesilassie said:  
It is common for a sentencing judge to assess the moral culpability of a particular offender or the gravity of the offending by characterising it as either being low, medium or high. However, it is important to bear in mind that the characterisation by the sentencing judge of the offender's moral culpability or the objective gravity of the offending in that way is not a matter of exactitude or precisions.  Importantly, such characterisation should not be subjected to a degree of artificial analysis involving fine and often inappropriate distinctions.  Nor should it obscure a proper analysis of the underlying factors that inform the assessment of the offender's culpability. 
28	What also cannot be overlooked is that given the high value, or the sanctity the law places on each human life, causing the death of another citizen usually is met by some imprisonment, so as to properly express the paramount sentencing considerations of general deterrence and denunciation.
29	As is well understood, this tragedy occurred on the West Gate Freeway during a period of significant road works to widen that freeway.  That fact played a significant role in the overall circumstances.  Freeways of course enhance efficiency and safety, in that traffic in multiple lanes moves in one direction, without the risks involved in cross roads and the like.
30	However, significant danger is created if, for whatever reason, there is a lane of traffic in a fast moving freeway that unexpectedly comes to a stop or near stop.  Real dangers arise if that happens in one lane only, as a consequence of a tailback from an exit.  That is what confronted drivers in the far left-hand lane on 16 March 2017.  The cause of the tailgate was not due to anything the deceased, the accused or any other driver could have any control over.  It was the effect of less than ideal management of the road works.  In brief terms, this was recognised by the road authorities to further reduce the speed limits following this tragedy.
31	However, what confronted the line of traffic at 2:45pm on 16 March was a disaster waiting to unfold.  The dashcam footage compiled by the investigators and their expert reports revealed Hoeboer was driving in the left hand lane and was able to pull up to a stop when the line of stationary cars came into sight.  Following behind was Mr Kostopoulos in a large tipper truck and trailer.  The dashcam footage from a vehicle in a lane further to the right, and from Mr Kostopoulos' own dashcam and rear view footage, it makes it clear the rapid emergency type manoeuvre that Mr Kostopoulos had to make to barely miss the car driven by Christopher Hoeboer and the line of stationary cars in front of him.
32	It is clear that Mr Kostopoulos driving at his speed of 80 kilometres an hour, that is the speed limit, with that size of truck could not have pulled up in the left hand lane in time without colliding heavily with the line of cars.  He was able to move to his right and he did so under heavy braking, reducing his speed as best he could.  You, Mr James, were travelling behind Mr Kostopoulos' truck in the left hand lane.  Mr Kostopoulos' truck was large and obscured, or impeded, a view of the lane directly in front of his truck.
33	While the issue of what speed you were travelling was at some point in proceedings in dispute, the prosecution now concede that you were not speeding, and you were at, or very near to, the modified speed limit of 80 kilometres per hour.  As can be seen on the dashcam footage, you were moving at or about the speed of all the other vehicles in the vicinity.  This tragic collision occurred as a consequence of Mr Kostopoulos' truck moving to the right to avoid an almost inevitable heavy collision. 
34	What then confronted you was the line of stationary cars.  You were unable to change your direction or lane, or to apply your brakes in time to bring your truck to a halt or to avoid the cars in front.  The reason put forward by the prosecution for this was that you were driving too close to Mr Kostopoulos' truck and, as events unfolded, the distance between your vehicle and that of Mr Kostopoulos' truck was such that when the line of stationary cars became clear, you were not able to avoid the fatal impact with Mr Hoeboer's car, and indeed other cars in line in front of his car.
35	This failure was said by the prosecution to amount to driving in a manner dangerous in all the circumstances, that meant, that once Mr Kostopoulos' truck had moved to the right the catastrophe was inevitable.  As can be appreciated, your driving was not in breach of some road law.  Also the collision did not arise because of some inattention momentary or otherwise.  It was your failure to maintain a sufficient gap, which was a risk that then materialised when the traffic exiting onto Forsyth Road tail backed for such a long distance onto the freeway itself.
36	As was recently said in the Court of Appeal in the 2021 matter of Lee, where a driver went through a pedestrian red light 14 seconds after it turned red and caused serious injury to a pedestrian, ‘The first obligation of a driver is to pay attention to the road ahead and be aware of the movements of others who are on or near the road’.
37	The circumstances here were dynamic and the emergency confronting the two trucks unfolded in a matter of seconds.  The relevant questions raised in Towle, is what degree of alertness to risk was reasonably to be expected of you, Mr James, as the driver in the circumstances.  Your alertness should have been such that you allowed for and maintained a sufficient gap between your truck and that of Mr Kostopoulos.  Even when Mr Kostopoulos was braking you should have maintained the gap such that you could have stopped, or more likely driven around Mr Hoeboer's car and a line of other stationary cars in the lane ahead of him.
38	This was the extent of your dangerous driving that caused the death of 
Mr Hoeboer and the serious injury to Ms Hoeboer.  However, in my view of all the circumstances informed in particular by the video footage, this was dangerous driving at the lowest end.  I come to this view mindful of the 
Court of Appeal direction to avoid over finessing this sort of categorisation.  I come to this view having very carefully considered the submissions of prosecuting counsel and defence counsel and all the relevant evidence.
39	In the end my view is that your moral culpability is low.  Indeed more so than the other cases discussed during the sentencing indication hearing.  In particular the matter of the DPP v Williams.  That case involved a car driven by Ms Williams that confronted a tailback onto the Calder Freeway.  She very quickly changed lanes in a dangerous manner causing a cascading set of collisions which in turn caused a death and serious injury.  The sentencing judge in that case described the driving conduct at the lowest end of the spectrum.  A community corrections order was imposed in that case with the support of the prosecution for such an outcome.  
40	The other critical feature of the circumstances here is the role of factors outside your control.  The Court of Appeal, in the case that I mentioned of Pan v The Queen, concluded that such factors being a poor road design could significantly and thus considerably reduce a driver's moral culpability.  Here the environmental circumstances outside your control were central to the unfolding tragedy.  But for the tailback, the distance you kept between your truck and 
Mr Kostopoulos would not have been such a risk and most critically any risk would not have materialised at all.
41	The road works and the way they were managed, or were not adequately managed, had a direct role in the tailback of cars.  Had there been better management, the collision would or could have been avoided.  There should not have been cars stationary on the freeway in such a long line.  While you Mr James, should not have been as close as you were to Mr Kostopoulos' truck, but in all the circumstances, and this was not in real dispute, the principles articulated in Pan, and applied in other sentences in this court, have here in this case considerable application.  The outside environmental aspects of this case were more causative or played a more determinative role in my view than in Pan's case, though the circumstances were obviously different.
42	The conclusion that the dangerousness or your moral culpability is lower, at the lower end of the spectrum opens up a wider sentencing discretion.  The case of Williams, which saw a lengthy community corrections order imposed and other cases in the County Court, such as Nicholson, and Calf, which involved multiple deaths and serious injuries caused by a driver driving through a give way sign, or a bus driver drifting off the road and rolling a bus – those were met with non-custodial sentences.  It all depends on the circumstances.
43	There are other examples though perhaps less of late because other sentencing considerations have been inserted to the Sentencing Act 1991 (Vic) by our parliament, significantly changing the sentencing landscape for offences of this kind.  But as noted with individualised sentencing, I must consider, not just moral culpability and the devastating impact of the loss of life and the serious injury,  I must also examine your own personal circumstances.
44	Aspects of your personal circumstances serve to mitigate or tend towards a more merciful sentence.  Other factors do not.  By that I mean that you have relevant prior and subsequent offending.  This is not always the case as many who commit these types of offences are people without any previous convictions and certainly very rarely subsequent convictions.  That leads the appellate courts to require sentencing judges not to over emphasise good character.  However, prior and subsequent offending is always relevant to the sentencing disposition. 
45	These principles were made clear recently in Wilson v The Queen where it was said and I quote:  
Principle dictates that convictions which occur both prior to and subsequent to an offence for which a person is to be sentenced are relevant to the imposition of sentence.  As was made clear in O'Brien, although no principle of sentencing requires that more severe sanctions be imposed upon those who persist in criminal behaviour, an adverse criminal record may nevertheless have an impact on the sentencing process in a number of ways: as an indicator of the offender’s moral culpability; his or her prospects of rehabilitation; his or her dangerous propensity (and the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. Moreover, subsequent convictions affect the credit that might otherwise have flowed to the person to be sentenced for having lived a law abiding life in the period between the relevant crime and sentence.
46	Your prior convictions, in particular your prior convictions for driving offences are concerning.  As was pointed out by your counsel, they are over 10 years old and there are a significant gaps indicating you can reform and live lawfully for lengthy periods.  However, your prior matters differentiate you from many others facing this type of offending.  Your more recent or subsequent drink driving offence is also troubling.  I have now learnt you have other pending court hearings for driving while affected by drugs.
47	It raises the need for specific deterrence, that is deterrence to you, and it undermines confidence in your capacity to fully rehabilitate.  It was explained that the stresses of waiting for this case to proceed and the deterioration of your long term relationships were the background to your ill-considered drink driving episodes.  The community corrections order you were placed on has seen some problems in compliance, but rehabilitation benefits are now more the pattern.
48	Part of that community corrections order has assisted you in respect of your own deteriorating mental health.  Also you have come to benefit from understanding your indigenous heritage.  Your upbringing was far from steady and ideal.  Principles set out in the High Court case of Bugmy have some mitigatory role to play.  To your credit, you have had, up until these events in March 2017, a reasonably solid work history.  You have not been able to work since, as a consequence of the effects on your mental stability, as a consequence of the tragedy, and the long delay in this matter getting before the courts, though your counsel very frankly said that there were aspects of you driving a truck in recent times.
49	Your marriage collapsed.  You are on your own and at real risk of homelessness.  Your circumstances in the sense of your mental health and your physical wellbeing are fragile.  Since the sentencing indication hearing more expert analysis has been done of your circumstances.  In particular, your mental health and your intellectual disability.
50	Turning to the matter of your intellectual disability.  You were assessed by the expert forensic psychologist Ms Cidoni as having a full scale IQ of 56.  This is very low.  When consideration is given to what level of IQ enables a declaration of intellectual disability, and thus potential entitlement to services under the Disability Act 2006 (Vic), that figure is a full scale IQ of 70.  There are other aspects that need to be established to allow for qualification under the Act, but it is clear you have a mild intellectual disability.
51	It is not said that your intellectual disability had any causal role in your crimes.  Rather, it can help to explain your failure to sustain a lawful lifestyle before and especially after these crimes.  Simply put, you do not have the personal resources to fully think through the consequences of your poor behaviour and decision making. 
52	Also, as the High Court said in blunt terms in Muldrock, an intellectual disability is always relevant to sentencing.  While the levels of moral culpability may be impacted because of an intellectual disability, the more important factor in this case is the need to consider and ameliorate the weight to be accorded to general deterrence, which is of course a very weighty matter in cases of this nature.
53	Your previously undiagnosed intellectual disability may or should open up another level of support from the NDIS funding system.  That is being investigated and is at early stages.  You need further assistance in the community and that need has become more and more acute as your circumstances, especially your mental health, have deteriorated since the trauma of this collision in March 2017.
54	Your upbringing and background were outlined by Ms Cidoni in her report and in the earlier submissions of your counsel.  You are now 49 years old.  Your mother was an indigenous woman.  Your father was a violent alcoholic who had caused significant family dysfunction.  He died accidentally when you were in your 20’s.  Your two younger sisters struggle with drug abuse and serious mental ill health.  You and your younger brother are close, especially of late.
55	You began serious abuse of alcohol from the age of 16.  You took up cannabis and amphetamines in your 20’s.  You committed crimes which saw you imprisoned in your 20’s.  On your release from prison at the age of 23 you formed a relationship which has in recent times finally come to an end.  You and your partner had three children.  The second child, a son, had a congenital disease causing muscular atrophy.  He finally and sadly died at the age of 15 in 2016.  It seems you took up this driving job to get money to pay debts arising from his funeral.  You did not cope well with your son's deterioration and death.  Your drinking escalated and you became violent and abusive to your partner.
56	You are now deeply ashamed that you mirrored your own father's dreadful violent behaviour.  You went downhill rapidly after your son's death and things escalated further in terms of your poor mental health following the collision on the West Gate Freeway and the death and injury that was caused.  Your wife left you in 2021 and an intervention order prevents you having contact with her and your youngest daughter.  You were, for period in 2021, homeless and at other times in boarding houses supported by your brother and your elderly mother and various professionals from Corrections and those related to housing services.  These low periods gives greater emphasis to the benefit being properly diagnosed, as you are now, with the intellectual disability and thus probably eligible for NDIS support.
57	You had labouring jobs from the age of 16, though as I have said, you have not been able to work since the collision.  You have in recent times been treated by a psychologist, Mr Chia-Ming Hsu.  He diagnosed you with complex post-traumatic stress disorder.  Ms Cidoni also came to that diagnostic opinion.  The complexity of your post-traumatic stress disorder arises from childhood exposure to traumatic violence, the tragic loss of your son when he was 15 and the collision in 2017 where you caused the death and serious injuries to Mr and Ms Hoeboer.
58	Your mental health is very fragile.  You had suicidal ideation after the collision.  Psychological testing reveals high levels of depression warranting clinical intervention and likewise for anxiety and stress.  You had these conditions prior to the collision but they are now significantly exacerbated.  Your fragile mental health is relevant to sentencing in the sense that gaol would be onerous for you and gaol would likely make your conditions much worse.
59	You have now had some treatment in the community and in my view your capacity to stay out of trouble would be better if your treatment continued by a mandated program within a community corrections order.  Your dysfunctional upbringing and consequent resort to alcohol and drug use, which in turn led to crime, gives rise to the applications of the principles by the High Court in the important decision of Bugmy. 
60	This adds to the mitigatory matters that I must consider as to who you are and why your circumstances have unfolded as they have.  That includes your subsequent offending or your incapacity to reign in your poor behaviour or decision making after this tragic collision.  You have undertaken rehabilitation sessions arranged by Monash Health to deal with your alcohol problems and your high levels of distress.  I have read the letters from the Monash Forensic Community Health and from the drug and alcohol recovery support organisation, SECADA, who have reported that you had improved insight.
61	The letter from Dr Roy of the Dandenong District Aboriginal Health Service also sets out the treatment that you have been provided for alcohol problems and trauma.  Dr Roy also noted your remorse for causing the death and serious injury in the collision.  Ms Cidoni also spoke about your remorse.  There are also more general factors that at this point in time play a very significant role in sentencing.  By this point in time I mean these pandemic times.
62	So, separately from your personal circumstances, the Court of Appeal in Worboyes made clear that a sentencing judge must give greater benefits to those who plead guilty in COVID times,  when the criminal justice system is in crisis. The benefits have to be palpable so as to encourage others who are guilty to plead guilty.  The benefit cannot be restricted to simply shorter terms of imprisonment.  It must also be expressed by imposing sentences of a different kind.
63	In addition, your plea of guilty at this time must be given real weight by reason of it relieving the prosecution of the significant burden of proving these crimes to the exacting standard of beyond reasonable doubt.   There were triable issues.  Further, Ms Hoeboer in particular and the extended families will be relieved of the stress of a trial.  It will be finally over with you acknowledging your responsibility and you being punished for it.
64	In addition to the utilitarian benefit of your plea of guilty you have expressed, as I have said, genuine remorse.  Ms Cidoni in her report wrote: 
He expressed deep remorse for the accident and he did not have the intention to harm.  He said that seeing the victims caused great shock and shortly after he admitted himself to a mental health facility in Dandenong for severe distress and anxiety.  He said he struggles to move on from the events.  He cannot eat or sleep and he's distressed, causing his long term relationship to end.  
65	The delay in this case has been too long, agonisingly so.  Five anniversaries of Mr Hoeboer's death have passed.  The trial has got to the door of the court three times.  That adds significantly to the stresses that became involved due to COVID, which has caused the enormous upheaval in the criminal justice system, but it should not be forgotten what that means.  That is, delays in the criminal justice system means that there is very stressful upheaval in the lives of individuals who would rather not be in the system at all.
66	Delay is always relevant to sentencing.  It can result in significant mitigation, especially if an accused has used the time to reform.  That is not entirely the situation here though. But for the drink driving and criminal harassment and other offending, you would have managed the delay positively and it is hoped that you will from here.  In the end, this long and, no doubt, stressful delay for all must be acknowledged in the ultimate outcome.  The long delay and the burden of waiting in the stop/start way the system has had to endure through COVID lockdowns is a form of, or has the effect of, punishment itself.
67	Your life has been on hold, your employment lost, your mental health has deteriorated, your personal relationships have not survived and homelessness loomed.  The delay in this case of now five years is a very significant factor having a mitigatory effect.  The central question here is whether the need for general deterrence and punishment could only be met with the imposition of incarceration in gaol.  At the sentence indication and on the plea the prosecution submitted that some imprisonment was required. Your counsel submitted that it was not.  
68	Of course I have not done justice to counsel's very comprehensive submissions, but I have read and re-read their submissions and revisited what was said by them in their oral submissions.  The Court of Appeal's  guideline decision in Boulton remains central to our sentencing rule.  It is clear that parliament changed the sentencing landscape when introducing the community corrections order regime.  Serious crimes that would ordinarily have been punished by significant terms of imprisonment now could be met by a community corrections order alone or in combination.
69	Community corrections orders have great benefit in that rehabilitation and punishment can occur simultaneously.  Rehabilitation in prison is far from guaranteed.  In fact the contrary is the more likely.  What the case of Boulton makes clear, is that community corrections orders are to be considered as sending appropriate messages of deterrence to others.  In other words, if you fall in any way short of your full responsibilities as an observant driver, you will be punished and required to pay the community back in practical ways.
70	The deterrence to any accused is not just the punishment but also the consequences that will flow if all aspects of the community corrections order are not complied with strictly.  Another critical factor is section 5(4) of the Sentencing Act 1991 (Vic), which relevantly reads that a court must not impose a sentence that involves confinement of an offender, unless the court considers the purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement of the offender.  Thus I cannot impose imprisonment if all sentencing purposes are met by a community corrections order.
71	This gives statutory authority to the concept that prison is indeed the punishment of last resort.  As I said in the sentence indication hearing, I have spent very long and anxious time and deliberation about this case because it is such a lineball.  The sanctity of human life is so important that the courts must be very considered in the analysis of all the circumstances and factors in the imposition of a sentence.  No sentence can measure to the lifelong grief of those who loved Mr Hoeboer and wanted to spend many, many years with him.  But my task is to apply the sentencing laws in as just a way as I can.
72	As I said, a community corrections order can meet all sentencing purposes given the low level of moral culpability involved here, in the unusual and tragic circumstances of the tailback of cars onto the freeway.  All the factors of the collision, including the significant role of matters outside your control, and your personal matters in mitigation, and the important matters that arise from the pandemic and the delay – all these matters – and now your intellectual disability, cannot be given mere lip service because of the human tragedy involved.
73	I concluded that all sentencing purposes could be met by a community corrections order alone.  I am more fortified now by the evidence that you, Mr James, suffer from an intellectual disability with an IQ well below the threshold for that categorisation.  General deterrence must be moderated as the consequences making it that little bit clearer that all sentencing purposes can be met by an onerous community corrections order.
74	The assessments done as to your suitability for a community corrections order indicated that you are suitable though there have been various problems with your community corrections orders which were made clear.  You need to undergo rehabilitation programs on this community corrections order, as well as undergo punishment by way of unpaid work and supervision.  Do not doubt that if you breach this community corrections order and return back here and I have to re-sentence you for these matters, the mercy that is being shown will not be repeated.
75	Doing the best I can, in respect of the charge of dangerous driving causing the death of Christopher Hoeboer, you are convicted and placed on a community corrections order for four years.  For the crime of dangerous driving causing serious injury to Rebecca Hoeboer you are sentenced to a community corrections order of two years.  These will run concurrent. 
76	The special conditions that apply to you in respect of the community corrections order is that you must do 300 hours of unpaid community work.  You must be under supervision.  You must be assessed and treated for drug abuse.  You must be assessed and treated for alcohol abuse.  You must be assessed and treated for your mental health problems.  You must undergo programs that you are directed to undergo that will endeavour to reduce your risk of re-offending.  All the hours that are involved in those programs can be hours deducted from the unpaid community work.
77	Your licence must be affected and it will be. Your licence is cancelled and you are disqualified from driving for two years and nine months.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years with a minimum term of two years and four months. 
78	Are there any other orders required?
79	MR LEWIS:  No, Your Honour.
80	HIS HONOUR:  Thank you.  I will just produce another document.  Mr James, all those on a community corrections order have conditions that apply to them and they will apply to you.  They are the mandatory general conditions.  The first of those you need to understand, because it's the most important I think in your case.  You must not commit any offence for which you could be punished during the four years of the community corrections order.  Should you commit any offence, even if the magistrate would not think of putting you in gaol, but if you commence an offence that is punishable by gaol then you will return back before me and as I said, the mercy that is shown will not be repeated.
81	So you must not commit any offences during the four years.  Do not commit any offences from now until your dying day but in the next four years it has that effect.  You must cooperate with the Office of Corrections and that is set out in a number of requirements.  So you must report to the Office of Corrections at Dandenong within two clear working days.  You must tell them of any change of address.  You must tell them of any change of employment or any employment that you get.  You must get their permission before you leave the State of Victoria and you must obey all lawful directions that they give to you and all their directions will be lawful.
82	The thrust of all that is obvious.   You must cooperate with them and do as they say.  Do you follow all that?
83	OFFENDER:  Yes, Your Honour.
82.		HIS HONOUR:  Thank you.  I’m just getting the document printed out.  I might 	go in the old fashioned way,  Ms Connelly, and take it down the back and sign 	it.
83.		MS CONNELLY:  Sure.
84.		HIS HONOUR:  If he consents to those, have him sign both of those because 	there's two corrections orders that run at the same time for each offence.  I 	thank counsel for their very significant assistance throughout the whole time 	that this matter has been before me.  I am very grateful to the family for patience 	with the system and with today, a very hard and difficult day, and for the dignity 	shown.  I will adjourn the case.  Ms Connelly, Mr James might best stay where 	he is for a little while and then you and here leave in due course.
85.		MS CONNELLY:  Yes, Your Honour.
86.		HIS HONOUR:  You work it out.
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