Director of Public Prosecutions v Allen

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

DAVID ALLEN

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2018
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2018] VCC 2244

REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence
Catchwords: One charge of dangerous driving causing death – Guilty plea – low levels of methylamphetamine and amphetamine in system at time of accident – genuine remorse
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited: Stephens v The Queen [2016] VSCA 121, Bell v The Queen [2018] VSCA 281
Sentence: Total effective sentence of 2 years and 9 months imprisonment
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Pickering	OPP
For the Accused	Mr L Barker	Valos Black

HIS HONOUR:

Introduction

David Allen, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.
You have also admitted your Criminal Record.

Circumstances of the offence

A prosecution opening was tendered on the plea and may be summarised as follows:
On 5 July 2016 at approximately 4.40pm you, David Allen left work at the Perkins Exterminators Depot at Wattle Glen. You had given two weeks notice that day that you were leaving your employment. The time to travel from the depot to your home is approximately 45 minutes.
At about 6.00 pm, Dieter Hahnenfeldt heard a crash on the road near his property at Break O’Day Road, Glenburn.
Mr Hahnenfeldt drove his car to the main road and saw a white 2004 Mitsubishi van, which had been driven by the victim, Stephen Aldridge, and a blue 1997 Toyota Hilux utility, which had been driven by you. You went to the driver of the white van, felt for a pulse and believed that the driver was dead.
Going to the blue utility, he saw you. You were moaning and moving. On further inspection he realised that he knew you as a neighbour who lived up the road. He observed that you appeared to be trying to get out of the utility. He observed blood on your face and you referred to Mr Hahnenfeldt as ‘Diet’. You repeatedly asked what was going on and where you were. You then produced your phone and asked Mr Hahnenfeldt to call your mother, which he did.
The road where the collision occurred is a two-lane road travelling generally in an east-west direction. The collision occurred approximately 1.2 kilometres west of the intersection of Melba Highway. At the collision site, the road markings were white broken lines for eastbound traffic, permitting overtaking for eastbound vehicles, and a white solid line for westbound traffic, which prohibit overtaking for westbound traffic. On the outer edges of each lane there was a solid white ‘fog’ line.
The area was semi-rural with large residential properties set back from the road and a grassed/gravel shoulder on each side of the road. The south side of the road was lined with trees.
The collision occurred in a curve of the road. At the curve, on the north side, there was a residential driveway. On either side of the road there were marker posts with reflective ‘cats eyes’. Leading up to the curve there were a number of large yellow direction signs which, when travelling west (as you were), indicated that there was a left curve in the road approaching. The bitumen road was in good repair. It was predominately flat but slightly uphill for vehicles travelling west. There was no overhead street lighting.
At the time of the collision the weather was fine and dry. The speed zone for the area was the default 100 kilometres per hour, with signs indicating the speed limit.
The position of the vehicles was noted by police to be as follows:
·    The victim's van was at rest facing south back towards the road on the grass shoulder with the rest of the vehicle down the embankment. There was extensive crush damage in the driver's side area. The victim was pinned by the crushed front and dashboard;
·    On inspection of the front bumper bar area it appeared that the initial impact was the driver's side of the centre mounted front numberplate;
·    There was no pre-impact tyre scuffing on the bitumen road surface from either vehicle. There was a single tyre scuff on the grass shoulder on the northern side of the road, just west of the two vehicles at rest. The mark appeared to have been made by the passenger side tyres of the victim's vehicle as it was steered left, off the road, in an attempt to avoid your oncoming vehicle;
·    A deep gouge in the bitumen surface on the northern fog line under your vehicle at rest near the passenger side front tyre was observed. The gouge appeared to be at the point of impact where the two vehicles, with your vehicle rotating slightly clockwise post-impact and the victim's vehicle also rotating clockwise off the road to its final position;
·    The location and direction of the tyre scuffmark on the grass shoulder from the victim's vehicle was consistent with the location of the gouge. This, together with the dirt deposits on the road under your vehicle indicated that your vehicle was wholly in the eastbound lane when the impact occurred; and
·    All tyres, except for the driver's side rear wheel of your vehicle were inflated and appeared roadworthy with sufficient tread depth.
The Prosecution case was put on the basis that your vehicle was approaching the left-hand curve of the road near 120 Break O’Day Road. You travelled onto the wrong side of the road and collided head-on with the vehicle driven by the victim. At the time of impact, your vehicle had travelled 2.1 metres onto the wrong side of the road.
As a result of the impact of the collision, your vehicle travelled to the eastbound lane and came to rest in that lane facing north. The victim's vehicle came to rest off the road facing south on the grass verge.
The impact of the collision caused extensive damage to the front driver's side of both the van and the utility. The victim’s van also sustained major crush damage to the driver's side cabin area. The victim was trapped in the damaged cabin and died at the scene.
You were transported by ambulance to Maroondah Hospital, where a sample of blood was taken from you at 8.57pm. The subsequent toxicological analysis of the blood showed that at the time of the collision the blood contained two illicit drugs:
· methylamphetamine 0.22 milligrams per litre; and
· amphetamine 0.03 milligrams per litre.
Police attempted to speak to you at the hospital but you were unable to recall the collision.
Dr Jason Schreiber, Forensic Physician with the Victorian Institute of Forensic Medicine, provided an opinion on the analysis of the blood results as follows:
·    In relation to methylamphetamine and amphetamine, drivers of motor vehicles who are intoxicated with these substances are more likely to drive dangerously, speed, and take risks compared to a non-drug affected state. Typical effects include speeding, inappropriate lane changes, erratic driving, rapid and non-stop speech, disorientation, agitation, irrational and violent behaviour and cognitive impairment;
·    A rebound effect occurs as the drugs wear off, characterized by fatigue, depression, and an irresistible urge to sleep. Typical ‘recreational’ blood levels are quoted as being up to 2.5 milligrams per litre with a median of 0.6 milligrams per litre. Methylamphetamine has a half-life in the blood of 10 to 30 hours;
·    The levels are considered as potentially effective and likely to have caused a stimulatory effect. A state of rebound fatigue after prior use of methylamphetamine at even a higher level was also possible;
·    Venlafaxine and Desmethylvenlafaxine were also located in your blood sample but those drugs do not usually have a significant effect on driving ability; and
·    You were driving after having used a stimulant drug. The times and doses could not be determined from the blood analysis but the level of methylamphetamine in the blood was at a level where impairment of driving skills would be expected.

Objective seriousness of the offence

The offence of dangerous driving causing death is by its nature a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected by the maximum penalty of 10 years imprisonment. However, as noted by established authority, the offence is capable of encompassing a range of driving behaviours.
In Stephens v The Queen[1] the court said the following:
Driving will be dangerous where there is ‘some serious breach of the proper conduct of a vehicle so as to be in reality and not speculatively, potentially dangerous to others.’ The driving must have some feature which subjects the public ‘to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may on occasion drive with less than due care and attention.’ A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.
Dangerous driving thus encompasses a very wide range of conduct. But it has been said on a number of occasions that dangerous driving causing death or serious injury is likely to receive a significant term of imprisonment. That statement of principle was qualified in Director of Public Prosecutions v Oates, by noting that any sentence which is imposed must take account of variations in the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence except where the offender’s level of moral culpability is low.[2]
[1] [2016] VSCA 121.
[2] Ibid at [20] and [21] (citations omitted).
In relation to the methylamphetamine and amphetamine detected in your system, as noted above, Dr Schreiber concluded that the levels ‘are considered as potentially effective. This level found in the samples is likely to have caused a stimulatory effect. A state of rebound fatigue after prior use of methylamphetamine at even a higher level is also possible.’
Given the equivocal nature of the conclusions of Dr Schreiber, both the prosecution and the defence submitted that the fact that you had some low levels of drugs detected in your system is a matter that can be taken into account as part of the factual matrix in the assessment of your moral culpability, rather than a matter of aggravation which the court would need to be satisfied of beyond reasonable doubt.
Nevertheless, whatever the cause for your lack of attention, you had crossed onto the other side of the road by 2.1 metres and there was no attempt by you to brake or swerve prior to the collision.
Mr Barker who appeared on your behalf, submitted that your driving did not exhibit the aggravating features such as excessive speed, phone use, driving over a long period, ignoring of police warnings, competitive driving or showing off. However as was noted in Stephens:
Moral culpability in respect of criminal conduct does not fall to be assessed simply by identifying aggravating features that could have been present and then ascertaining that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors. Both dangerousness and moral culpability fall to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.[3]
[3] Ibid at [26].
Mr Pickering who appeared on behalf of the Director of Public Prosecutions, submitted that your offending may be described as being at the lower end of moral culpability but not at the lowest. Mr Barker argues that the facts of this case fall into a similar category as that of Bell v The Queen[4] where Ashley JA concluded that the appellant’s moral culpability was low as it was a ‘true case of momentary inattention’[5]. However, the circumstances in Bell were very different to the circumstances presented here and in my view, while the identified aggravating features are not present, the circumstances here do not place your moral culpability in the category of that described in Bell.
[4] [2018] VSCA 281.
[5] Ibid at [54].
In assessing the seriousness of this case I take into account all the circumstances as already detailed, but most importantly, the fact that your attention was diverted to such an extent that at the time of the collision your vehicle was entirely on the other side of the road by 2.1 metres and that there is no evidence that you took any evasive action before impact. As such, in my view the extent of the risk which your driving created, and the potential harm which resulted in the death of another person, elevates the seriousness of this offence well beyond the example of Bell.

Victim impact statements

Two victim impact statements were tendered and read on the plea. The first was from Kerry Bayliss the partner of the victim, Stephen Aldridge. Ms Bayliss speaks of the enormous impact Mr Aldridge's death has had on her and her family and the ongoing grief and trauma she suffers. Ms Bayliss also expressed in very strong terms her anger towards you as the person who has brought the enormous loss and suffering upon her and her family.
The second victim impact statement was prepared by Ms Bayliss's daughter Amber Bayliss, who was the stepdaughter of Mr Aldridge. Amber Bayliss was in her final year of high school when Mr Aldridge died. Understandably, that year became a very difficult year for her, with the stress ultimately affecting her physical and mental wellbeing. She states that she felt ‘anger, guilt, grief, despair and absolute confusion’.
I wish to direct some comments to the family of Mr Aldridge. There is nothing this Court can say or do that will bring back Mr Aldridge, or heal his family's significant grief and pain that has been eloquently expressed in the victim impact statements. The sentence I must impose can in no way be a measure of the worth of Mr Aldridge's life. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Personal circumstances

You are now 31 years of age. You were 29 at the time of the offence.
You are the youngest of three children; you have two older brothers and a stepsister. One of your brothers passed away as a result of cancer in 2014. Your other brother has had a history of involvement with the criminal law and has spent various times in prison. He has no ongoing contact with your family.
You had a difficult childhood marked by dislocation and hardship. Your father was rarely employed, was a drug user and was violent towards your mother. As a result of this your mother fled Victoria when you were two years of age. She relocated on Hamilton Island in Queensland where she worked as a cleaner at a resort. It was submitted that she has always worked hard to provide for your family which is a trait that you have picked up from her.
Your family remained in Queensland for three years before returning to Melbourne. Your mother formed a new relationship in about 1992. Your stepfather played a significant role in your upbringing. You developed a close relationship with him and he devoted a lot of time to you during your younger years.
You attended Lilydale Primary School and thereafter Lilydale High School until year nine. Your mother's relationship with your stepfather ended when you were about 14 years of age. You sought assistance from your school counsellor as a result of the difficulties you were grappling with in relation to your parents separation. At age 17, you were prescribed medication for depression. You have struggled with depression ever since and have been constantly on antidepressant medication for the past six years.
After leaving school you held down numerous forms of employment in various retail jobs and labouring positions, ultimately being employed at a pest control company in 2013. You continued in that position until the day of the collision.
As to your drug history, you were introduced to cannabis at the age of 16. You progressed to amphetamines and ecstasy when you were about 18 to 19 before beginning to use methylamphetamine when you were approximately 21 years of age, becoming a significant habit. Eight months ago you engaged in drug and alcohol counselling. I received a letter from your general practitioner explaining your prescription of Valium for a short period of time while you withdrew from ice. You have remained drug-free ever since.
You have been with your partner since 2011 however you have known each other since you were teenagers. You have one child, a son, who is now five years of age. A reference from your partner was tendered on the plea. She speaks of your depression since the accident and the genuine remorse that you have expressed towards the victim's family.
A report was prepared by psychologist Dr Natasha Davidson and tendered on the plea. You initially made contact with her in September 2016 and had, up until the time of the writing of her report in September this year, attended some 46 therapy sessions. You have continued since that day to see Dr Davidson. She confirms your depression since your teenage years and is of the opinion that you are likely to experience ongoing episodic depression which will require ongoing medication, in addition to psychological treatment. She notes her observations of you throughout the sessions where you stated on various occasions that you are sorry and wish that you could give the man's family some answers. She notes your feelings of guilt and anxiety and in her view, you have shown remorse for the impact the accident has had on the victim's family.
As to your depression, while it appears that it is being managed, Dr Davidson is of the opinion that you are likely to find imprisonment more difficult than someone not suffering from your condition and further, that imprisonment could have an adverse effect on your mental health.
A number of references were tendered on your behalf predominately from family members and as noted, your partner. They all speak with a united voice as to your genuine feelings of remorse towards the family of the victim in this matter.

Sentencing considerations

First and foremost I acknowledge that your plea of guilty has avoided the time and expense of a trial and most importantly avoided the need for the victim's family to relive these events through a trial. As such, I accept that by your plea of guilty you have facilitated the course of justice.
As to the timing of your plea, I know that you ran a contested committal however, at that stage you had different representation and I was not told as to the purpose of you contesting the matter initially. The matter was ultimately booked in for trial and resolved in August of this year. As such, the plea cannot be considered as an early plea however I do accept from the material before me that your plea of guilty is an expression of contrition in this instance.
Over and above the plea of guilty, Mr Barker submitted that the most powerful matter of mitigation in your case is your genuine and abiding remorse. As noted above, the evidence of your remorse is reflected in the observations of the many family members that provided testimonials on your behalf and the report of Dr Davidson. I accept that you have genuine insight into your offending and have demonstrated genuine remorse.
General deterrence and denunciation of your conduct are relevant sentencing considerations in this instance as was sensibly conceded by Mr Barker. As to specific deterrence, in my view in all the circumstances it should carry less weight in the sentencing discretion. You do have one prior matter in 2012 where you were speeding and driving whilst suspended. You received an adjourned undertaking in that instance with a condition to attend a road-trauma awareness seminar. However, given the strong evidence of your insight into your offending, the impact your offending has had on you and the steps you have taken towards rehabilitation, in my view supports the conclusion that specific deterrence has less of a role to play in the sentence I impose.

As to your prospect of rehabilitation, in my view it is clear that you have demonstrated genuine and sustained remorse in relation to this accident. You have engaged in counselling over a long period of time following the accident which has enabled you to continue to address your ongoing depression. It has also enabled you to have greater insight into your offending and as such, a further appreciation of the impact of your offending on the family of the victim. The character references establish that you have a significant support network. They speak of your close family relationships and your dedication to your partner and your son. It is clear that your family will continue to support you during your period of custody and upon your release.
Mr Barker also pointed to the principle of delay and that is has been some 28 months to bring this matter to a conclusion. While some of the delay has been a result of you initially contesting this matter, I accept that the delay has meant that this matter has been hanging over your head for a considerable period of time which it was submitted, is particularly difficult for someone like you with a history of depression. Delay is also relevant because it can provide an opportunity for an offender to achieve rehabilitation during the period of delay. In your case as noted, you have engaged with a counsellor in a therapeutic way which has enabled you to gain further insight into your offending and to deal with some of the issues that you have grappled with over a long period of time. I also note that you have addressed your underlying drug issues and have been drug-free for some months now. As such, I assess your prospects of rehabilitation as very good.
Mr Pickering submitted that the only appropriate sentence is a period of imprisonment with a non-parole period. Mr Barker submitted that in the circumstances a community correction order or a combination order pursuant to s 44 of the Sentencing Act would be appropriate dispositions. I formed a view at the time of the plea that a period of imprisonment was warranted however I had you assessed for a community correction order for which you have been assessed as suitable.
Nevertheless, after careful consideration in my view, in all the circumstances including the reasons noted above as to the objective seriousness of the offence, I do not believe that the relevant sentencing considerations are able to be met by a combined sentence.

Sentence

Mr Allen please stand.
David Allen, on charge 1, dangerous driving causing death, you will be convicted and sentenced to 2 years and 9 months imprisonment.
I direct that you serve a period of 18 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 13 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 89 of the Sentencing Act 1991 your licence will be disqualified for a period of 18 months.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months.

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[2018] VCC 2244

17 December 2018