A NORTH East man has avoided jail following a fatal car rollover in which a 19-year-old man died, near Eldorado in 2021.
Judge Gerard Mullaly gave his sentence at Melbourne County Court on Monday, saying the unusual and unique nature of the case was enough to find exceptional circumstances to avoid a jail sentence.
The court heard the defendant, who was 18-years-old at the time, showed deep remorse for his offending, formally pleading guilty in April this year.
On September 11, 2021, a group of eight soldiers based at a North East army barracks set out to camp in the Chiltern Mount Pilot National Park.
After heading out four-wheel-driving in the afternoon, the group drank alcohol while setting up camp in the evening.
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At around 9:30pm to 10pm, the group explored nearby tracks in the victim’s Volkswagen Amarok, with six passengers riding in the vehicle’s rear tray.
On the way back to camp while on Lonies Gap Road near Mulls Track, the vehicle stopped as passengers searched for a hat, which flew off the head of one of the passengers on the rear tray during the drive.
The defendant jumped into the driver’s seat vacated by the victim and began driving with one passenger in the back.
The victim chased the vehicle and jumped onto its side step, hanging on to the driver’s side door and “possibly” the wheel.
The victim, along with the passenger in the rear seat implored the defendant to stop, as he drove on for around 20 seconds.
The court heard the track had become difficult and steep and the defendant lost control of the vehicle as the left wheels drove up on an embankment, forcing the car to roll onto its driver’s side.
The victim, still on the driver’s side step, was crushed and died.
Tests showed the defendant had a blood alcohol content of between 0.091 and 0.143 at the time of the crash, despite having a zero-alcohol limit.
The blood alcohol content of the victim at the time was .140.
Judge Mullaly said it was different to many other cases, with the defendant driving for only 20 seconds.
“You did not set out to drive and thus endanger other road users,” he said.
“When the deceased left the driver’s seat for some foolish and immature reason you then got into the driver’s seat and drove.
“When the deceased stepped on the car and possibly grabbed the steering wheel the circumstances are significantly different to the unusual circumstances of someone driving effected by alcohol.
“You being in the army and the army investing in you was a factor that needed to be taken into account.
“These factors are far from run of the mill in these cases.”
The court heard victim impact statements of the deceased’s parents made it clear the death of their “go-getter” son left them heartbroken.
The victim’s mother said they lost an “incredible” young man and the endless possibilities of what could have been.
“No parent should bury their child yet here we were,” she said.
“He would want his life to mean something and try to make a positive out of this tragedy and prevent others from a similar fate, because that was important to him and who he was.
“Knowing that we will never see his children is one of the hardest things to take, he always wanted children and would have been a great father.
"He is missed beyond any words."
The court heard of the “impressive” character of the now 20-year-old defendant, who continued to serve with the Australian Defence Force.
His former commanding officer said he was a good soldier who had demonstrated a significant potential as a military technician.
“I could see how much the incident had effected him, he was genuinely remorseful, scared and remained in various states of shock as the case progressed,” he said.
“He sought ways to keep himself busy, demonstrating immense character.”
Judge Mullaly said he gave “anxious” consideration in his ruling, issuing a three-year community corrections order, including 200 hours of unpaid work and treatment and assessment for alcohol.
Judge Mullaly also issued a $400 fine and an 18-month licence disqualification.
He said imprisonment would have been inevitable if he had pleaded not guilty, most likely for 36 months.
