Director of Public Prosecutions v Allen
[2018] VCC 1992
•28 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL DIVISION
Case No. CR-18-00928
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM ALLEN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | 27 November 2018 | |
DATE OF SENTENCE: | 28 November 2018 | |
CASE MAY BE CITED AS: | DPP v Allen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1992 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr D. Taylor | Daniel Taylor Lawyers |
HIS HONOUR:
1 Malcolm Allen, you have pleaded guilty to two charges of culpable driving. That crime carries a maximum penalty of 20 years imprisonment. You are now 69 years of age, about to turn 70. You pleaded guilty at an early opportunity. You expressed appropriate remorse and you must get the utilitarian benefit of that plea of guilty. You do have one prior conviction for drink driving but that was now some 30 years ago. I understand that you have no other matters pending and that is the extent of your criminal history.
2 Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes, that order having been made I must advise you that should you refuse to provide one police can use reasonable force to take it from you and that order is made and handed down.
3 The offending is serious indeed. The circumstances were that on 24 September 2017 at approximately 4.45 pm you were driving your vehicle on the Omeo Highway near Omeo. You were 68 years of age. A Subaru station wagon was coming in the opposite direction being driven by Nikita McAlpine and her sister Kelsey McAlpine. They were 18 and 15 years of age respectively. Earlier in that day witnesses say that at about 20 to four you were seen drinking in the Hilltop Hotel in Omeo and you there had two pots of mid strength beer.
4 A witness there was speaking to you and you were speaking about children and grandchildren and you seemed to be in reasonable spirits. You advised her that your son had a 21st birthday party the night before. CCTV footage shows you leave the Hilltop at 4.22 pm. You then went to the Omeo Foodworks where you were served by Mr Goller. He states that you purchased a packet of Champion Ruby and some papers. He observed you to be unsteady, slurring your words and formed the opinion that you were drunk.
5 After his concerned with you he was concerned for your safety and indeed followed you to the door. You then attended at the Golden Age. You there had a pot of mid strength beer and a witness Matthew Mason was there with his wife and daughter. He had a conversation with you and you detailed about the 21st birthday the previous day. He observed that you were very tired and he saw you consume a pot of beer. He states that he observed you to be pale and seedy looking. Ten minutes later, your glass was empty and you left the hotel. You then got into your motor vehicle, a 1990 Toyota utility and proceeded to drive down the Omeo Highway towards Benambra.
6 It is accepted that your reading was .210 at the time of impact. That is the description of the drinking that was observed by witnesses on the day. However, I do note that when you spoke to the psychologist Ms Lechner, you told her that you had either been told or that you remember that you were drinking beer for breakfast. You seem to have, and I accept this, no other memory of the day, whether you had been drinking during the day other than those breakfast beers and the beers in the pub prior to this. I dare say we will never know.
7 Clearly, at .210 you are well over the limit and clearly incapable of properly driving a motor vehicle. Ms Lechner opines that you are and have been a relatively heavy drinker and that would tend to mask the effect that you may perceive as to alcohol having upon you. Be that as it may, you do not have the prior convictions and whilst might have suspicion as to how often these things occurred, you are not to be sentenced for anything that may or may not have occurred in the past. Indeed, your drinking patterns may have lulled you into something of a sense of false security.
8 You failed to negotiate a corner and collided head on with a Subaru and killed both Nikita and Kelsey McAlpine. Police attended the scene and it was clear, I have seen the photos which are disturbing to say the least, that your vehicle overrode the Subaru in a head on collision and virtually crushed it . Your vehicle pushed the other back about six metres on impact I am told by the Crown and it is accepted that the girls would appear to have at least tried to brake before impact. You were then found in the vehicle. Matthew Mason who I have mentioned before came across the scene and he knew the two girls well.
9 He was put in the position where he got an old blue tarp and placed it over the car. It was in those circumstances that police arrived some time later, about 45 minutes to an hour from what I can gather and by then the family of the two girls had arrived and spent a very significant period of time looking at a scene where it must have been clear to them that their two girls had been crushed to death. I cannot even comprehend, being the father of five children, what that must have felt like for them, I really cannot.
10 In any event, you were taken and interviewed. You said you could not remember much about it. You said you could not remember the collision itself. You agreed that you bought a six pack of beer at the Foodworks, thought that does not seem to be mentioned by the eye witness. In any event, you are well in excess of the limit, you are on the wrong side of the road, it is in the middle of the afternoon and you have killed two girls.
11 This is not the momentary lack of attention of answering a mobile phone or playing with a car radio, or changing a tape, or dropping a cigarette into your lap or anything like that. This is on any basis, no matter how you may have considered it yourself, it was a conscious decision to drive in circumstances where you must on any basis have been aware that you were at least significantly affected by alcohol and as I have pointed out and has been pointed out clearly in this matter, the effects have been catastrophic.
12 Obviously the offending is very serious, and it calls for the application of general deterrence. In your situation I suspect that the because of the nature of the sentence that will be impose specific deterrence will not really be something to worry about. Obviously there must be an appropriate punishment and there must be denunciation of the offending, as the prosecutor pointed out yesterday that somehow or other this sort of behaviour has to be stopped.
13 Tendered were victim impact statements from the girl's parents and their brother. I do not intend to read from them, they were read out yesterday by the learned prosecutor with a very powerful impact. Those victim impact statements indicate clearly why courts have to impose very condign sentences in a situation such as this. They eloquently and emotionally describe the utter devastation that has been felt by all the members of the family and the ongoing anguish and sadness and psychological difficulties, including post-traumatic stress disorder for the two parents that have been continuing and in all probability will continue.
14 There is also a victim impact statement from a teacher at the school and showing the devastating effect that something like this has on a school, counsellors, psychologists being called in, being going on now for over a year. Also having been brought up in the country I am very conscious of what this sort of thing can do to a country community and things which can take, in some situations, decades for the community to get over. All those matters obviously I take very much into account in this sentencing process.
15 The only sentencing option available is one of active custody and despite your age of 69 the offending is of such a nature that it requires a very significant gaol term indeed. I then look to matters personal to you and a very helpful plea was put on your behalf by Mr Casement and he gave me sentencing submissions as well as some references. In simple terms, you are now 69, about to turn 70. You have the one prior convictions but that is of no real import in this particular situation. Your background is such that you have worked all your life. You have been employed. You have had a couple of relationships.
16 You have got two children from an earlier marriage who do well in life and you have got a child who I referred to before in the 21st birthday party from a subsequent relationship. You were able to get to year 10 at Bairnsdale Tech and you have worked as a shearer, you have worked with machinery, you have milked cows, you have managed farms and generally over a long period of time you have been a very worthwhile member of the community. You have been involved in football teams. You have played football, you have played sport at Omeo, Benambra and are obviously a very worthwhile member of the community.
17 At the time of the impact you were semi-retired. I have obviously called all those things into account at a moment such as this. I also have before me the reports of Ms Lechner and Mr Jackson, neuro psychologist. It is clear that you have suffered as a result of this. You yourself were in hospital for a period of two weeks, fractured ribs, a broken jaw and clearly significant injuries. You do have a heart condition which is being treated and you have other difficulties with your health. That is to be expected in someone of your age and it is not put to me that there are exceptional circumstances or that there is anything physically wrong with you that could not be adequately dealt with by a custodial environment.
18 You do have a cognitive defect, as outlined by Mr Jackson, but when one takes into account the opinions and the submissions at least of Ms Lechner and the report, as I say, of Mr Jackson, it appears that cognitive defect may well be the result of long term alcohol use. In any event, I do accept for these purposes that your general health will make it more difficult for you in a custodial environment as opposed to somebody without those difficulties. Obviously the cognitive deficits play no part in moral culpability or general or specific deterrence in a such as this.
19 It is a very unfortunate thing that a man of your age has to be sentenced to such a sentence but the fact of the matter is that particularly over the last decade or two the community just simply will not longer tolerate this sort of conduct that puts our children at risk and certain circumstances such as this that lead us to totally unnecessary and absolutely devastating deaths. The prospects of your rehabilitation should be reasonable bearing in mind your age. I think the risk of you re-offending certainly in this way would be zero.
20 Your counsel pointed out to me that your mother died at a relatively early age and your father deceased by his mid-70's so I have to pass this sentence with the knowledge that you may well die in gaol. That is a very unfortunate set of circumstances and it is one where I feel sympathy and I have endeavoured to reduce the minimum term to account for that to a certain extent. But the fact of the matter remains that if people choose to drive in this way and have this effect of destruction on others, then they are going to have to live with it.
21 I have read, as I think I have indicated, the references that have been tendered on your behalf and I do not think they add much to what I have said. They talk about the rodeo, bush racing committees, Benambra Football Club and all those matters. You, as I say, can call them into aid at this point in time but the sentence remains at the end as it is.
22 Accordingly and I am very much bearing in mind here questions of totality and also the need if possible to avoid a crushing sentence. The sentence having considered carefully overnight is as follows. Charge 1, eight years. On charge 2, eight years. In these circumstances it is the one piece of driving but two very distinct lives. Accordingly, three years of the sentence imposed on charge 2 will be served cumulatively upon the sentence imposed on charge 1. That gives a total of 11 years.
23 Bearing in mind your age I am prepared to say that I direct that you serve a minimum term of seven years before becoming eligible for parole. I direct that one day be reckoned as having been served under this sentence. So that you understand and everybody understands what the benefits of your pleading guilty and accepting responsibility as you have are in these particular circumstances I say that had you pleaded not guilty and been convicted by a jury of these two charges, I would have sentenced you to be imprisoned for a period of 16 years with a minimum term of 11.
24 HIS HONOUR: All right. Any other others I have to make?
25 MR CORDY: Yes, Your Honour. Licence disqualification and the - - -
26 HIS HONOUR: Yes, sorry. No, you're right. Yes. Any licence to drive is cancelled, disqualified for five years.
27 MR CORDY: And his declaration - - -
28 HIS HONOUR: I made that yesterday I think. It will be on the - I made it yesterday, the s.89. Yes, I have done that.
29 MR CORDY: Thank you, Your Honour.
30 HIS HONOUR: Nothing else, Mr Taylor, that you need?
31 MR TAYLOR: No, Your Honour.
32 HIS HONOUR: No, all right. Yes, thank you. He can go now. You can take him, thank you.
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