Director of Public Prosecutions v Abee

[2023] VCC 2465

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01097 & CR-22-02327

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ABEE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2022
DATE OF SENTENCE:	15 December 2023
CASE MAY BE CITED AS:	DPP v Abee
MEDIUM NEUTRAL CITATION:	[2022] VCC 2465

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:             Culpable Driving Causing Death – Possession of a Drug of Dependence – Youth – Standard Sentence

Cases Cited:DPP v Daniels [2021] VSCA 272; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 25

Sentence:11 years imprisonment, non-parole period of 7 years and 4 months; licence cancellation and disqualification of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Valos Black & Associates

HIS HONOUR:

1James Abee, you have pleaded guilty to two charges of culpable driving causing death and one charge of possession of a drug of dependence.  You entered your pleas of guilty following a sentence indication hearing at which I indicated, and you accepted, a total effective sentence for both charges of culpable driving causing death being 11 years with a non-parole period fixed at 7 years and 4 months.  With respect to the separate charge of possession of a drug of dependence, I intend to impose a sentence that does not add to your total effective sentence.

2In giving the sentence indication, I gave reasons for the sentence that I ultimately indicated.  I will refer to and repeat much of what was said.  I have revisited the whole sentencing task and the materials relied on and the further submissions made on your behalf by your counsel, Mr Desmond.  I have come to the conclusion that there is no basis to impose a sentence less than what was indicated.  The law prevents, as it is stated by your counsel, a sentence more severe than what was indicated. 

3But as to the facts of the offending, on any analysis of those facts and circumstances, it leads to the all too familiar conclusion that this was yet again a wholly avoidable tragedy where the lives of the much-loved victims were unnecessarily ended and the families of the victims are now left to grieve in disbelief at what happened.

4On 17 September 2021, the victims, Jean Denise Mitchell and William David Mitchell, known as Denise and David, were together driving from a medical appointment in Langwarrin to their home on Phillip Island.  Mrs Mitchell was driving along North Road towards the South Gippsland Highway.  She intended to turn right and then head south along the South Gippsland Highway towards Phillip Island.  The intersection was one where Mrs Mitchell would first negotiate the northbound traffic on the South Gippsland Highway and then move into the median strip before turning into southbound lanes of the South Gippsland Highway.

5At that time, around 1.15 in the afternoon, you, James Abee, were driving south on the South Gippsland Highway.  You had earlier in the day been working on your car – a black Commodore – in your house in Cranbourne North.  You were with a friend, James Vos, who also had a Commodore.  His was maroon in colour.

6You and Mr Vos drove onto the South Gippsland Highway more or less together.  Once on the road, you were observed by many other drivers to be driving well in excess of the 80 kilometre per hour speed limit and to be weaving between lanes passing other drivers on their left and right.

7It is clear you and Vos were driving in an irresponsible competitive fashion. What unfortunately occurred was another driver - a Mr Brown - also in a Commodore, became engaged or involved in the competitive driving.  He was driving far in excess of the speed limit.  The estimated speed of your car and the other Commodores along the South Gippsland Highway was in the order of 140 kilometres at the time of the collision which I will speak of shortly.  It was estimated by the reconstructionist the speed was between 166 and 174. 

8But meanwhile as you two men and the third man drove along, Mrs Mitchell was well able to turn from the median strip into the left-hand lane given the gaps in the traffic where drivers were driving responsibly.  However, you,
Mr Abee, came up to the intersection of North Road and the South Gippsland Highway at such a high speed that you found you were heading too fast into a car in the right-hand lane.  You moved into the left lane where Mrs Mitchell had turned into just moments before.  You then collided with the rear of her car at high speed despite your last second efforts to brake. 

9The dreadful impact caused both Mr and Mrs Mitchell to needlessly die together at the scene. They were both in their mid-80s. They had been together and married for nearly 70 years. They were inseparable. The Victim Impact Statements of their adult children speak of the love they had for each other and for their family, their children, grandchildren and very young
great-grandchildren. They were living active, independent lives, involved in and deeply admired in their community on Phillip Island.  There is much more to say about the loss suffered by the victims' family and I will shortly read portions of their Victim Impact Statements.

10To return to the circumstances of the crime, clearly this was driving at outrageously dangerous speeds. You created enormous risks that when the risks were realised, caused utter devastation.

11As it turned out, you had used methylamphetamines, you said, the night before.  It was still in your system. Your counsel argued the impact on your driving by reason of the drugs that you had taken was unclear.  Without descending into fine detail, I am of the view that having methylamphetamine in your system affected your reasoning, judgement and capacity to drive responsibly.  But the greater factor was your decision to drive at such high speeds in a competitive way with the other men in Commodores.  Your counsel argued you were not racing in some organised race.  That is not strictly to the point.  Your decision to drive at high speeds and erratically as the other Commodores were doing as well, is a serious feature of this crime.  It may not have been an organised race between you men but it was competitive and this lead to the avoidable tragedy.

12Thus in assessing the gravity of the crime, I am of the view that the very high speeds and the way that you were driving in the brief competitive way had the effect of putting so many other road users at high risk.  And, as it sadly turned out, the extent of harm that resulted, was the instant violent death of two decent, much-loved members of our community.

13Your counsel submitted the short duration of your speeding and the very brief time you had to react, lowered your culpability, but in the end your counsel conceded this was mid-level of gravity of the offence of culpable driving.  The Prosecution put it higher but there was not a lot of difference as to the proper assessment of gravity in the end.

14Your counsel raised, in an appropriate way, that the victims' car came onto the main road into the albeit speeding traffic.

15I have considered this and refer to the decision of DPP v Daniels,[1] a Prosecution appeal. A reduction in culpability due to other factors outside the control of an accused gives rise to a discretion, but I take the view that in all the circumstances which I have reviewed again, the driving of the victim does not diminish the overall gravity of your offending or your moral culpability.

[1][2021] VSCA 272

16Your moral culpability is in my view high. You paid no regard to other road users.  You were more interested in your own selfish sense of enjoying driving fast with the other like-minded men.

17Your moral culpability is not diminished by any properly established impaired mental function that is causally connected to your criminal acts.  I have revisited the report of Mr McKinnon[2] in this regard and I remain of the view that any impaired mental function that he speaks of is not established sufficiently, nor is it causally connected to your criminal acts.  You did not think through the risks that you were creating.  But that is how this evolved.  You leapt into highly risky driving because it was risky – you lost any interest you may have had in the safety and welfare of other road users.

[2] Exhibit 1 – Psychological report of Ian McKinnon dated 29June2023.

18Also of relevance, elevating your moral culpability, is the number of times in the brief time you have had a licence that you were detected driving at extreme speeds.  There were examples of this in the weeks before you killed Mr and Mrs Mitchell and concerningly, there was an example after you took the lives of those two decent people.  That only has to be said for it to be understand that the need for my sentence to deter and to protect the community are weighty matters.

19As mentioned, there has been a devastating impact on the family of the victims.  I have re-read the two Victim Impact Statements tendered and  I heard them read today during the plea.  They reveal the heartbreak of all within the Mitchells extended family.

20Ms Hatfield stated how difficult it was to describe the emotional impact, the grief, the anger and hurt.  Important to her and I expect to all the family and spoken about by Ms Gotham, was that there was a loss of the chance or even the right as she said to be with her parents when they died, giving thanks to them for their amazing life and telling them how much she loved them and how much they were loved.  That was all taken from her.  It was a violent death she knows and that was something that they did not deserved, is how she expressed it.  She described her parents as 'the most loving, caring and giving couple'.  She speaks of them being in love with each other.  The impact on her is that she has trouble sleeping and feels quite anxious as she did in writing this Victim Impact Statement.

21She speaks about the things that she misses, that is, being able to ring her parents each day, telling them news about her life, her children, their own children and hearing how excited her parents were to hear that news and how proud they were.  It seems that Denise and David spoke of their family to their friends quite a lot as that was what they were told after their death.  She speaks of her parents being in her heart or in the hearts of the family forever.

22Ms Gotham also speaks about the disbelief that she had in hearing the news, being in utter shock.  She also speaks about her parents at the time being independent, living on Phillip Island, enjoying their retirement, enjoying the community, enjoying each other's company.  They had, it is said by
Ms Gotham, great family friends and neighbours who loved and cared for them.  They would walk each morning along the beach, chatting to friends and no doubt to each other and many were devastated by their loss.

23She also speaks of their loss of opportunity for them to have died of older age much later on and being surrounded by their family at that time, talking to them as described before.  Ms Gotham also speaks of when things in life happen, how she instinctively turns to the thought of speaking to her Mum and Dad about whatever it was, but that cannot happen and how that is something missed.  She concludes that the world lost two kind-hearted and generous people that day and her sadness and sorrow is a permanent scar.

24But of course this moment of catastrophic, appalling driving by you, Mr Abee, on 17 September is not the beginning or the end of who you are.  Your personal circumstances are important in the sentencing process.

25You were and still are a young man.  You were 19 at the time and are now 21, soon to be 22.   You have a supportive mother and stepfather who have done much for you in raising you.   You moved from school to labouring, to farm work and furniture removal. The references tendered from your family and your friends, your peers and employers set out the good characteristics that they see in you.

26You have what is of real importance, a supportive partner and a young son who means a lot to you.  The loss of being able to be with your family and watch your son grow by reason of being imprisoned is something that hits you hard.  You have as you grew up struggled with drug-use.  Your response to what occurred taking the lives of the victims has haunted you and you found remaining on the rails as it were while on bail, to be difficult.

27Your time on bail following being charged has been problematic. Your behaviour and how you were coping meant that in the end bail was revoked.

28Imprisonment is hard at your young age.  Your mental health has been impacted as you cope with what you did and the knowledge that many of your best years will have to be served in prison. I have read carefully the two psychological reports tendered on your behalf. They were helpful in outlining your circumstances and personality, but as I have said, there is no established impaired mental functioning that played any causative role in your offending. You are immature, prone to peer influence, and you were impulsive.

29I do not lose sight of your rehabilitation. It remains an important goal given your age and lack of prior criminal history.  However, as the appellate authorities make clear, for offences of this kind, so often committed by the young and immature, deterrence must remain to the fore.  Indeed, the gravity of the offences means that rehabilitation must yield to denunciation, deterrence and punishment.  The sanctity and value of life means that the Courts must react with stern punishment when a life, or worse, two lives, are needlessly ended.

30A very important mitigatory factor is the value of your plea of guilty.  Your plea of guilty is of value because you have relieved the Prosecution of the burden of proving your guilt of culpable driving beyond reasonable doubt.  More importantly, you have relieved witnesses and the family of the trauma of reliving this tragedy.  Your plea of guilty came after a committal and a sentence indication hearing, but I note no trial date had been fixed.

31Your plea of guilty is an expression of your remorse. There are other pieces of evidence from friends and psychologists establishing the genuineness of your remorse.  You are and will be lifelong affected by what you did. You feel contrite that your stupid acts caused loss and grief.  Your plea attracts an augmented benefit because, although the criminal lists in this State are much improved, what the Court of Appeal said in Worboyes[3] and again in Biba[4]  means that there is still some application and benefit that should be given for a plea of guilty such as yours in the circumstances.

[3]Worboyes v The Queen [2021] VSCA 169

[4]Biba v The Queen [2022] VSCA 25

32Your crimes are ones with a standard sentence of 8 years.  Thus, following the methodology set out by the Court of Appeal in Brown,[5] I must acknowledge that these crimes are standard sentencing crimes, I must use the 8 years and the maximum term of 20 years as legislatively guideposts in my sentencing task.

[5]

33The standard sentencing regime preserved instinctive synthesis which in turn means your youth, your reasonable prospects for the future and your good characteristics are not ignored simply because the crimes are dreadful, sad and are part of a standard sentencing regime.

34There must be a recognition of each of the lives of Denise and David Mitchel, meaning a measure of cumulation is required.

35Your counsel urged there be measures of parsimony or mercy.  It is always a grave step to send a young man to near on, or in fact perhaps beyond, a decade of imprisonment – the whole of the young man's 20s – to be spent in gaol.  But here, the gravity of the crimes is such that a sentence of that length is necessary.  As I indicated, the sentence that I now impose was the following.

36As I indicated, on indictment M11979658, the sentences I now impose are:

Charge 1, culpable driving, you are sentenced to 8 years' imprisonment;

Charge 2, you are sentenced to 8 years' imprisonment.

37I order that there be a cumulation of 3 years of Charge 2 on Charge 1.

38That gives a total effective sentence of 11 years.  I fix a non-parole period as indicated of 7 years and 4 months. 

39Had you pleaded not guilty to these offences and been founded guilty of them, I would have imposed a sentence of 13 years with a minimum of 10. You have served now 223 days in custody that is attributable to these offences. This number of days having been reckoned, I declare pursuant to the provisions of the Sentencing Act, that those 223 days are part of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the courts so the prison authorities are left in no doubt that you have already served 223 days of the sentence I have just imposed.

40With respect to the separate indictment where there is a charge of possession of a drug of dependence which was found on you in your sock at the scene, I impose a sentence of seven days' imprisonment which will be wholly concurrent on the sentence imposed on the other indictment being M11979658.  Had you pleaded not guilty to this offence, I would have imposed a sentence of one month.

41In respect of your licence, you have as I have indicated, and was conceded by your counsel, a poor, perhaps appalling, driving record.  It is mandatory that your licence be cancelled and you be disqualified for a minimum two years.  In your case the imposition of disqualification will be for four years.

42Is there anything else required?

43MR PORCEDDU:     Your Honour, just one thing.  I think you referred to the accused being 21 years of age.  I think he has had a birthday.

44HIS HONOUR:  I said that.

45MR PORCEDDU:  So he's 20 - - -

46HIS HONOUR:  I said he is 21, approaching 22.

47MR PORCEDDU:  Just pointing it out, he is now 22, that's all.

48HIS HONOUR:  All I know he is 21, 22, 21 and 11 months and 28 days when I gave the sentence indication.  He has now turned 22 which I have indicated.  If I have got that wrong by much, I apologise to him and to you and to everyone, but the main bottom line here is, he is young.

49MR PORCEDDU:  Yes, I don't take issue with that, Your Honour.

50HIS HONOUR:  You don’t?

51MR PORCEDDU:  I also have a disposal order as well, Your Honour.

52HIS HONOUR:  Okay, I'll sign that disposal order.  Is there anything further, Mr Desmond?

53MR DESMOND:   No, Your Honour.

54HIS HONOUR:  Thank you.  Do you need a moment to speak to your client over this link?

55MR DESMOND:  That would be appreciated, sir, if - - -

56HIS HONOUR:  That would be appreciated?  All right, thank you.

57MR DESMOND:  Yes, thank you. 

58HIS HONOUR:  There'll be a gap while my staff work that out for you.

59MR DESMOND:  Yes, sir.

60

HIS HONOUR:  There are a number of people online in court.  To all those who are here in court, I thank them for their dignity in difficult circumstances, which I did I think earlier, and I certainly repeat.  To the family, Ms Gotham who read the Victim Impact Statement, that's no easy thing.  Likewise to

Ms Hatfield who is in court, I thank her for her assistance and all that has been shown.  I thank Ms Churchill as well and your instructing solicitor and the police officers involved.  Difficult matters.  Thank you.

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