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Judges find ‘anomaly’ in mandatory terms

Pulling out of a driveway, Victorian P-plater Joshua Lombardo thought he had enough time to be clear of the path of an oncoming motorcyclist.

He was wrong and 46-year-old father-of-three Aaron Flack was killed.

The crime of dangerous driving causing death carried a mandatory prison sentence, but Lombardo avoided jail and was instead sentenced to 250 hours of community work.

Prosecutors succeeded in part in challenging the sentence in Victoria’s Court of Appeal on Wednesday.

But despite finding the original sentencing judge was wrong not to imprison 22-year-old Lombardo, the three appeal justices exercised their own discretion not to lock him up.

They found Lombardo’s rehabilitative progress on the community corrections order would be lost if he was to go to prison now.

They also suggested reconsideration of the law, which requires a person to be imprisoned in all cases of dangerous driving causing death charge unless two criteria are met.

The defendant must have either a formal diagnosis of mental illness at the time of sentencing, or for there to be exceptional, rare, substantial and compelling circumstances that justify an alternate sentence.

Neither applied in Lombardo’s case, the appeal justices found.

While Lombardo was found by a psychologist to have anxiety and post-traumatic stress disorder symptoms, both fell short of a formal diagnosis.

The appeal justices – Stephen McLeish, Richard Niall and Maree Kennedy – also pointed out potentially unintended consequences of the law as it stands.

Cases involving low moral culpability, typically momentary inattention or misjudgment, are being placed in the same position as significantly more seriously culpable driving causing death offences.

“Whereas cases of this kind are in truth closer to cases of mere carelessness,” they said.

“On one view, this introduces an unfortunate anomaly into the law governing sentencing for these offences, and warrants reconsideration.”

In Lombardo’s case he was pulling out of a driveway onto the Hopkins Highway at Bushfield, near Warrnambool, in March 2020.

It was cold, dark and Lombardo’s car windows were fogged. He told police he saw a dim headlight in the distance but it looked far enough away that he thought it was safe.

Mr Flack braked to avoid Lombardo’s ute. He was thrown from the motorbike and slid along the road before colliding with the vehicle.

He could not be revived.

Lombardo has completed 137 hours of the 250 community work hours ordered. He was also banned from driving for 18 months.

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