Director of Public Prosecutions v Antonie

[2023] VCC 1825

IN THE COUNTY COURT OF VICTORIA

  Revised

  Not Restricted

          Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00649

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN ANTONIE

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2023
DATE OF SENTENCE:	10 October 2023
CASE MAY BE CITED AS:	DPP v Antonie
MEDIUM NEUTRAL CITATION:	[2023] VCC 1825

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW 

Catchwords:              Dangerous driving causing death – momentary inattention – low moral culpability – plea after sentence indication 

Legislation Cited:      Sentencing Act 1991 

Cases Cited:DPP v Lombardo [2022] VSCA 204, DPP v Borg [2020] VCC 1218; DPP v Georgiou [2022] VSCA 172 

Sentence:3 year Community Corrections Order 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Ellwood	A. Hogan, Solicitor for Public Prosecutions
For the Offender	Ms M. Walker

HER HONOUR:

1Brian Antonie, you have pleaded guilty before me to one charge of dangerous driving causing the death of Trevor Drew.

Circumstances of offending 

2The circumstances of your offending were set out in the prosecution opening for plea dated 9 October 2023 and marked as Exhibit A.  I will summarise those facts here.

3At 1.10 pm on 30 June 2022, you drove your white 1992 Holden Commodore utility into the Dan Murphy's carpark in Doncaster Road, Doncaster East.  You entered from the southern end and drove north through the carpark, passing in front of the store. 

4Without making any turns you drove straight into a parking space at the end of the carpark, parallel to the Dan Murphy store in a space closest to the entry door.

5You got out of your vehicle and went inside, returning five minutes later pushing a shopping trolley containing packaged alcohol.  You unloaded your purchases into the back tray of the ute and returned the trolley.

6You made your way back to the vehicle and at 1.17 and 20 seconds you closed the door and put your seatbelt on. 

7At 1.17 and 46 seconds, 81-year-old Trevor Drew came out of the Dan Murphy store, also pushing a shopping trolley containing packaged alcohol. He was making his way to his white Subaru wagon parked four bays east of your car. 

8At 1.17.55 Mr Drew stepped off the footpath and walked behind and across the rear of your utility. 

9At this time you put your vehicle into reverse and it accelerated and struck Mr Drew and his shopping trolley.  Mr Drew was caught under the vehicle.

10Instead of applying the brakes the car reversed at speed, travelling 52 metres from its parked position.  Mr Drew was dragged under the vehicle and left on the road 49 metres from where he had first been hit.

11People rushed to Mr Drew's aid but he died at the scene. 

12You were interviewed by police later that afternoon.

Gravity of offending 

13Any offending involving a death such as this is of the utmost gravity.  True though it is that there were no aggravating features such as drug or alcohol use, speed or distraction, a life has been lost. 

14Your driving resulted in the death of Mr Trevor Drew, a much-loved husband, father, stepfather, grandfather and friend.  No sentence can compensate for his family's loss and you will have to live with the consequences of your driving for the rest of your life.

Victim Impact Statements  

15I have received a number of victim impact statements, Exhibits B to E, they eloquently capture the loss felt by Mr Drew's loved ones and the enormous grief they are now suffering.

16Mr Drew's family write of losing the opportunity to say goodbye to him, the immediate distress and the ongoing impact of their loss, particularly on his partner, Annie, for whom he was both a loving partner and a carer. Mr Drew was clearly a much-loved participant in both family and community life.  His death has left a massive void and no sentence this court can impose will compensate in any way for his loss.

Moral culpability 

17It was conceded by Mr Ellwood for the prosecution that your moral culpability is at the lowest end.  As he said, there is no explanation that can satisfy what happened, however, there was no malice involved whatsoever and this was a momentary lapse of judgment.  I agree. There is no question that had you seen Mr Drew you would have stopped.  Whether you looked and did not see him or you failed to look, your moral culpability is confined to those few seconds.  I take this into consideration

Plea of guilty 

18The parties agree that your plea of guilty was entered at an early opportunity after a sentence indication.  This has significant utilitarian benefit.  You have save the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.  In those circumstances you have facilitated the administration of justice and you are entitled to a benefit for that. 

19The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.

Remorse 

20By your plea of guilty you have demonstrated an acceptance of responsibility for your offending.  I have also received a letter of apology, Exhibit 3, in which you express your profound remorse for the offending conduct. 

21I accept you are remorseful and have demonstrated an understanding of the devastating impact of your driving on Mr Drew's family.  I note also that you have made the decision not to drive again.  I take these factors into account.

Personal circumstances 

22I turn now to your personal circumstances.

23You are now 83 years of age, having been born in September 1940. 

24You grew up in Strathmore with two brothers.  Your mother died when you were 14 years of age and your father struggled with the responsibility of bringing up his sons.

25Upon leaving school at an early age you commenced an apprenticeship with a local butcher.  You completed that apprenticeship and worked as a butcher for 60 years, 18 of those in your own business. 

26You married your wife, Gayle, in 1969 and purchased a home in 1974, where you still reside.  She had one child and together you went on to have a son and a daughter.  All three children remain supportive of you and have provided character references expressing that support which was Exhibit 2.

27You ceased work in 2014 to look after your wife who passed away in January 2018. 

28That, together with this incident, has seen a deterioration in your mental health. 

29You also suffer from a number of medical conditions, including:

·   Ulcerative colitis

·   peripheral vascular disease

·   Type 2 diabetes

·   osteo-arthritis

·    prostate cancer, in remission.

Sentencing principles and factors 

30Mr Antonie, the consequences of your driving are nothing short of catastrophic for all involved.

31Dangerous driving causing death is a Category 2 offence, resulting in the mandatory imposition of a period of imprisonment unless an exception is established pursuant to s5(2H)(e) of the Sentencing Act 1991. A sentence of imprisonment is, in most cases, inevitable.

32On a sentence indication hearing on 21 September 2023, it was put by both parties that it was open to me to find that there are substantial and compelling circumstances that are exceptional and rare and that justify a non-custodial sentence in this case pursuant to s5(2H)(e) of the Act.

33In determining whether substantial and compelling circumstances that are exceptional and rare exist:       

(a)  I must regard general deterrence and the denunciation of your conduct as having greater importance than other sentencing purposes.  Further, less weight must be given to your personal circumstances;

(b)  I must have regard to the fact that Parliament's intention is that a period of imprisonment should ordinarily be imposed and whether the cumulative impact of the circumstances of this case would justify a departure from such a sentence;

(c)  I must not have regard to your previous good character other than the fact that you have no prior convictions, your prospects of rehabilitation or parity with other sentences; and

(d) when looking at comparable sentencing decisions, I must not have regard to cases that are not Category 2 cases.

34Having taken those factors into account, I was persuaded that pursuant to s5(2H)(e) of the Act, there are substantial and compelling circumstances that are exceptional and rare and that justify a non-custodial sentence in your case.

35These are in combination as follows: 

·you have no criminal record or traffic history,

·this is a clear example of momentary inattention;

·there are no aggravating features of the driving;

·the burden of imprisonment on you would be substantial;

·and most significantly there is a concession from the prosecution that your moral culpability, as referenced above, is at the lowest end.

36I was referred to several cases, including DPP v Lombardo, DPP v Borg and DPP v Georgiou.  These cases involve various examples of dangerous driving causing death and all resulted in the imposition of a community corrections order rather than a period of immediate imprisonment.

37As was held in Lombardo at [72], “applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof.  It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.” 

38I consider that specific deterrence is of minimal relevance to you.  You have an unblemished past and have now ceased driving.  You are acutely aware of the impact of your offending and you are unlikely to commit another offence of this nature, or indeed any other offence, and the need for community protection is lessened . 

39Just punishment and denunciation are important and general deterrence remains relevant.  Driving offences, including those arising from momentary inattention, are all too prevalent and others must be encouraged to take care when in charge of a vehicle.

40Following submissions by both parties that a community corrections order would be within range, on 21 September this year I ordered that you be assessed for such an order.  You reported stressors from before the offending and since, namely Covid isolation, grief over the death of your wife and the offending itself and were observed to be very remorseful.

41A Mental Health Advice and Response Service assessment found that you could benefit from ongoing psychological counselling.

Disposition 

42On Charge 1, you are sentenced to a community corrections order with conviction for a period of three years. The conditions of that order are:

·that you report to Box Hill Community Corrections Service within two working days of today; and

·that you undergo treatment and rehabilitation for your mental health. 

43  Your licence is cancelled and disqualified for a period of three years.

44 Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty I would have imposed a sentence of four years' imprisonment with two years and six months to serve before being eligible for parole.

45  Mr Antonie, do you consent to being placed on a community corrections order?

46OFFENDER:  Yes, Your Honour. 

47HER HONOUR:  We'll have that order provided, thank you, Ms Panozzo.

48MS WALKER:  If I can approach ‑ ‑ ‑ 

49HER HONOUR:  You can approach the dock, yes.

50MS WALKER:  Thank you, Your Honour. 

51HER HONOUR:  You may be seated Mr Antonie.  Is there anything else from either party?

52MR ELLWOOD:  No, Your Honour. 

53MS WALKER:  No, Your Honour. 

54HER HONOUR:  Again, I thank all those present in court for the dignity with which they have conducted themselves today.  We'll adjourn the court, thank you.

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