Road safety on Remembrance Drive has again been thrown into the spotlight following a judge's remarks on the poor road design that contributed to a fatal collision.
Judge Gerard Mullaly has taken into account the 'poor design' of a Cardigan intersection when sentencing the young driver who failed to stop and caused a fatal accident in 2018.
Nasuha Nasser, 23, pleaded guilty to dangerous driving causing death and two counts of dangerous driving causing serious injury at the County Court of Victoria on Monday.
Judge Mullaly found the design of the intersection at Madden Road and Remembrance Drive was a risk outside Nasser's control that significantly reduced her moral culpability.
Nasser was 21 at the time when she failed to see warning signs and stop signs as she approached Remembrance Drive on Madden Road and entered the intersection into the path of another car.
She was driving her twin sister and three friends, two who were visiting from Singapore, home from a day trip to Halls Gap on November 24, 2018 in a hire car.
Nasser's sister and friend suffered serious injuries in the crash and her friend, who had arrived in Melbourne from Singapore two days earlier, died.
The court heard the deceased woman was seated in the rear middle seat and was not wearing a seatbelt at the time of the collision.
Judge Mullaly found this, in addition to the 'notoriously dangerous intersection', was a factor outside Nasser's control and contributed to her reduced moral culpability.
The 48-year-old man driving the second car and his 10-year-old daughter did not suffer serious injuries, but told the court in a victim impact statement they were shaken up by the crash.
Crown prosecutor Patrick Bourke said Nasser was interviewed by police after being discharged from hospital and said she did not notice the intersection or the stop sign until she was 'too close' and she pressed the brakes but 'not hard enough'.
Judge Mullaly questioned why Nasser was driving north on Madden Road when the logical route from Halls Gap to Melbourne would have been via the Western Highway.
Defence barrister Ruth Shann said Nasser was following the GPS that was being operated by her sister and she was not sure why it had directed them onto Madden Road.
Judge Mullaly said it was 'frightening' this was the second case he had heard where a GPS had directed the driver to country roads they were not familiar with and they had caused a collision by driving through an intersection.
Ms Shann said this was a true case of momentary inattention and Nasser had low moral culpability.
She said Nasser's remorse, post traumatic stress disorder, high character, no criminal priors and excellent prospects of rehabilitation were mitigating factors.
In his sentencing remarks, Judge Mullaly said the case was a 'dreadful human tragedy' and the deceased woman's family were 'heartbroken'.
Judge Mullaly said the intersection was 'notoriously dangerous' and referred to expert evidence that revealed a driver may possibly not be able to fully see the intersection when trees and the building were at the right alignment.
He acknowledged further speed reductions and rumble strips were installed at the intersection after the collision and said the poor design of the intersection was of fundamental importance for the court to consider.
"In my view the design of the intersection... made risks outside the control of the driver higher," Judge Mullally said.
"Your driving up to that point was careful and responsible.
You were completely unaware of the intersection and its dangers.Judge Gerald Mullaly
Judge Mullaly said he considered Nasser's moral culpability at the lowest level and found the substantial and compelling circumstances of the case justified a non-custodial sentence.
He said he took into account Nasser's personal suffering, as she had been diagnosed with post traumatic stress disorder and a major depressive disorder.
The court heard Nasser felt constant 'tormenting' guilt, had expressed she wished it was her rather than her friend who had died and had experienced regular intrusive flashbacks.
Judge Mullaly acknowledged Nasser had suffered more this year being isolated from her family in Singapore due to COVID-19
He quoted Nasser's psychologist who said she 'had a sense she must be punished herself... and dedicate her life to helping others in (her friend's) name'.
Nasser was sentenced to a three-year community corrections order and will be required to complete 250 hours of unpaid community work. She was disqualified from driving for 18-months.
Judge Mullaly said had Nasser pleaded not guilty and then been found guilty, she would have been sentenced to two-years' imprisonment with a one year and nine month non-parole period.
He said while exceptional circumstances meant Nasser did not receive a custodial sentence, dangerous driving must be denounced.
"All drivers must remain attentive... momentary inattention remains dangerous and is a criminal offence," he said.
"Overwhelmingly, punishment for that offence (dangerous driving causing death) is imprisonment."
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