Director of Public Prosecutions v Armstrong
[2022] VSC 827
•20 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0303
| THE KING | Crown |
| v | |
| ROBERT BARRY ARMSTRONG | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 November 2022 |
DATE OF SENTENCE: | 20 December 2022 |
CASE MAY BE CITED AS: | DPP v Armstrong |
MEDIUM NEUTRAL CITATION: | [2022] VSC 827 |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Accused operating an unseaworthy boat at Portland – Deceased killed when the boat capsized and the victim was trapped beneath the hull and drowned – Low moral culpability – Plea of guilty – Remorse – No prior convictions – History of service to the community – Poor mental health – No risk of re-offending – Verdins limbs 5 & 6 – General deterrence and denunciation of some weight – Specific deterrence and protection of community of no weight – Category 2 offence – Exception established under s 5(2H)(c)(ii) – Mental impairment – Sentenced to a community correction order for two years and $5,000 fine – Cancellation of marine licence – Sentencing Act 1991 (Vic) ss 3, 5(2H), 5(2H)(c), 5(2H)(e) – Marine Safety Act 2010 (Vic), s 171.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused | Mr G Barns SC | James Dowsley & Associates |
HIS HONOUR:
Introduction
Robert Barry Armstrong, on 3 August 2022 you pleaded guilty to one charge of driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, whereby you caused the death of Paul Vlcek. Mr Vlcek died by drowning on 5 September 2018. As will be explained later, your actions on that day were the cause of his death.
The maximum penalty for the offence of driving in a manner dangerous causing death is ten years’ imprisonment.
At the date of the commission of your offence, dangerous driving causing death was a Category 2 offence, the implications of which I shall discuss later.
Circumstances of the offending
In July 2018, you saw an advertisement for the sale of a boat and, after contacting the owner, agreed to buy the boat sight unseen, then transferring the agreed price into the owner’s bank account. Before you purchased the boat, you had seen photographs of it and spoken to the owner, who told you the boat needed a fair bit of work, but you told him it was okay and you planned on cleaning it up.
The boat was an unknown brand, twin-hulled aluminium catamaran, powered by twin outboard motors. The floor of the boat was flat between the two hulls, with gates that opened the rear to permit access for hauling in large fish. The boat had no hull identification numbers, or manufacturer’s plate.
On 21 July 2018, you picked up the boat, at which point the seller pointed out a hole about the size of a fingernail in one of the hulls, towards the bow. You were also told that you would have to look at the wiring of the electrical system. After taking delivery of the boat, you had some repairs done to the boat trailer. On 22 August 2018, you delivered the boat to an auto electrician whose records showed that you asked for repairs to wiring as required, to fix the hour metre and the fuel gauge, to repair wiring to faulty connections, and fit an aerial and GPS/fishfinder. You also installed some seating and removed some perished hoses from the hand bilge pumps.
There were two types of pumps on this boat, one being manual, and the other being electric. The removal of the hand bilge pump hoses left holes in both hulls which you plugged up with corks. However, removal of the hoses and plugging of the holes made the hand bilge pumps inoperable. You also plugged up what you later described as a ‘2 mm hole’ at the front of the boat, by using an epoxy glue.
The auto electrician repaired faulty electrical work on the boat, wired up a UHF radio; installed the GPS/fish-finder, and replaced some faulty connections. He also replaced corroded battery terminals. The boat’s two fuel gauges were inoperable, but he managed to get one working. The electrician checked the electrical bilge pump and found that when he turned it on manually from the dashboard, he could hear that it was working. However, he did not inspect the electrical bilge pumps as they were installed beneath the flooring. When he removed a previous sounder transducer (or sensor) from the transom of the boat, and fitted a new one, he noticed that the boat had previous other ‘sounders’ that had been fitted in that area, and as a result there were multiple holes in the transom from those previous installations.
The auto electrician told you a number of things, including: that you should get the hand bilge pumps working as the electrical bilge pump would not be sufficient to remove water from the hulls; that the floor on one side of the boat was held down with rusty screws and that when he lifted the floor he saw a floatation drum inside the hole but considered it unsafe because it would lift if the hull flooded and would force the flooring up, and that the floatation drum would cease functioning and had to be repaired; that the same situation applied in the other hull. He pointed out that there was a hole at the front of one hull and told you to get it repaired because it would take water in. Further, he told you that there were too many holes in the transom, too many old screws, and that you would have to get the whole back section of the boat checked. He emphasized that you had to get some sort of bilge pumps working in order to keep the boat safe.
In broad terms, the auto electrician made it clear to you that the boat had a series of significant faults and emphasized that you would first need to put the boat on the water to see if it took in any water. You told him you would take it out and check it first before you went to Portland.
You picked up the boat from the auto electrician on 1 September 2018. The prosecution alleges that at no stage did you actually turn your mind to making the boat watertight by fixing the holes in the transom or the decking, or by engaging someone to perform those repairs.
On 2 September 2018, you took the boat and went with some friends to Portland for your annual fishing trip. The following day, you took the boat for its first outing with three passengers. Having returned to shore about an hour later as one of the passengers had become seasick, you removed the plugs from the rear of the hulls to find that about five litres of water flowed out from each hull.
A few days later, in the morning of 5 September 2018 you launched the boat to go fishing with three passengers, including Mr Vlcek. After travelling about 30 minutes, you anchored the vessel about 1.5 to 2 km offshore. At one point, Mr Vlcek was wearing a life jacket, as you had insisted that he did so as he could not swim. After about 10 to 15 minutes from anchoring, it was noticed that the boat was taking on water. You were told that it was time to pack up the fishing rods and head back to the boat ramp. You tried to start the motors, but by that stage they were already about three quarters underwater, and they did not start. As the boat took on more water, the stern set lower and lower, and water pushed open some gates to the rear of the boat that let water rush in faster.
You radioed for help but got no response. Passengers tried to bail out water, but to no avail. You also tried using your mobile phone to raise the alarm, but could not get through to anybody. Suddenly, the boat flipped, with the stern sinking and the front rising and coming over the top of the four occupants, and the boat capsized. Apparently, all of you went under the boat with the cabin on top of the four men. It appears that a number of you were separated from each other and lost contact, however, a boat came to the rescue in due course.
Later, the Coast Guard attended and performed rescues. Members of the Victoria Police Force Search and Rescue Unit arrived by helicopter, whereupon an underwater search of the upside down boat was performed, during which Mr Vlcek’s body was located inside the boat. He was found to be wearing a fully inflated life vest.
The boat was towed to the Portland by the Coast Guard, removed from the water, and stored for later examination.
Cause of death
The body of Mr Vlcek was examined by a forensic pathologist from the Victorian Institute of Forensic Medicine and it was concluded that in the circumstances as described, the reasonable cause of death was found to be by drowning.
The boat inspection
Across September 2018, the boat was inspected by a properly qualified marine surveyor. The examiner discovered that there were a number of significant defects with the boat, which included:
(a)the hole in the starboard forward hull;
(b)three holes in the rear of the port hull, adjacent to the transom where old transducers had been removed;
(c)the deck was not properly held down due to missing or inappropriate screws having been used, and sealant missing from holes;
(d)the scuppers were ineffective, one blocked and one not opening and closing properly;
(e)the hand bilge pumps had been disconnected and were inoperable;
(f)the electric bilge pumps did not operate automatically because the float switches were inoperable;
(g)the bilge alarms were inoperative; and
(h)the boat did not have adequate buoyancy in either hull.
The surveyor concluded that the boat was in poor condition; had holes in the deck that permitted water to enter the hulls; had holes in each hull that permitted water to rapidly enter each hull; had inoperative bilge pumps; had inoperative scuppers; and had insufficient buoyancy.
The surveyor also concluded that, had the bilge pumps been working correctly – either the electric or the hand pumps – this would have been sufficient to expel water at a rate much faster than it was entering the boat. This meant that even with the holes present in the boat starting to sink, it could have returned safely to shore if either of the bilge pump systems operated correctly.
The record of interview
On 14 March 2019, you were interviewed by police about the sinking of the boat.
In the interview you described a longstanding interest in boats, that you had worked on trawlers in the past, that you had previously owned a boat, and you had decided to buy another boat, particularly looking for a twin hull boat because you believe them to be safe.
As to the purchase of the catamaran, and on arrival at the seller’s location, you noticed that the condition of the boat was not as good as you had been told; that you saw that the two hand bilge pumps had rotten hoses; that you later removed these hoses, blocking off the residual holes with corks; that you observed a hole up in the bow area on one of the hulls and that you blocked that off with a filler or glue like Araldite, and that you were not worried about that hole because it was small and above the waterline.
As to repairs, you asked the auto electrician to get everything running and to check everything, and you fitted some new equipment to the boat. You said to the police that when the electrician’s work was complete, you spoke to him and he told you that ‘everything was working on it’. You agreed that you should have put a plate over the bilge pump holes to stop water getting in.
As to the first voyage of the boat, you agreed that when you returned to the shore and the plugs were pulled out of the boat, there was probably about five litres of water in each hull. You confirmed that you knew the hand bilge pumps were inoperable, but that you did not know there were electrical bilge pumps at all, and did not know that one of the switches on the dashboard was to operate those pumps. You said that you had planned on plating off the hand bilge pumps permanently and installing big electrical bilge pumps when you returned. You agreed that you had blocked off and made the manual bilge pumps inoperable so that when you went out from Portland, to the best of ability you knew that you did not have any bilge pumps.
Finally, you said that you knew the transom had a hole in it from previous transducers, but said they were filled up. Further, you said you knew the scuppers were locked closed when they should have been open.
In summary, it would appear that with your past familiarity and experience with boats, you well understood that this boat had a number of significant defects when you purchased it.
Victim impact statements
At the time of his death, Paul Vlcek was 61 years old. You and he had been friends for many years, and you knew that he could not swim. He had some health issues.
The Court was provided with two victim impact statements.
Jane Vlcek, Paul Vlcek’s wife of 43 years, described her profound sense of loss at the sudden and unexpected death of her husband, Paul. This loss has not eased for her with the passage of time. She expresses feelings of dread and anxiety, and a sense of doom, that affect her deeply. She describes not only having lost her husband, but also her closest friend and companion. She expresses how, when his life was lost, their future was also lost, including all their plans. She regrets that he should still be here to enjoy the things he loved, the trees he planted, the birds he knew, his music, his painting, and most importantly his grandchildren. Further, she describes that occasions of family celebrations, which used to be looked forward to, only result in feelings of sorrow and loss.
Sarak Vlcek, Paul Vlcek’s daughter, describes how the sudden loss of her father, to whom she was very close, has had a huge emotional impact on many aspects of her life. In particular, her father died just weeks before her wedding, at which he was expected to walk her down the aisle. In those circumstances, his death has left a particularly empty place, physically and emotionally, the most important day of her life marred by the absence of him being there. As a result of her father’s death, she feels a sense of anxiety about her own husband travelling in boats, and an ongoing sense of fear when he goes fishing. She expresses anxiety in regard to her own young children and a lack of trust in others to safely care for her own loved ones. She expresses that she is constantly haunted by the events that occurred, not knowing exactly what happened and why. She is consumed by grief for his loss, and anger about the senseless way in which he died. She misses her father every single day, and is sad that her own young daughters are growing up without him in their lives. She described how his death has had a huge impact on her life, and that nothing will ever be the same without him.
Procedural history
As at the date of the plea hearing, the case brought against you had been running for some four years. It was submitted by both sets of counsel that the delay was not on the part of any particular party.
Originally, the prosecution issued a charge against you under the Marine Safety Act 2010 (Vic) on 19 August 2019. You were later charged with manslaughter on 10 October 2019. An offer was made on your behalf in early July 2022 to a charge of dangerous driving causing death under s 319 of the Crimes Act 1958 (Vic), which offer was ultimately accepted.
Personal circumstances
Background
At the time of your offending, you were 74 years old. You are now 78, and retired. You were born in Maryborough, and were brought up by your paternal grandparents, as you were abused as a young child by your parents. You were schooled to year 8, and left home when you were 14.
You have six children from two marriages, one of whom is deceased. The second marriage ended in 2017. Your eldest child is 60, and your youngest child is 42.
You were a member of the regular Army and served in Vietnam in the mid-1960s. You also joined the SAS at one point and served further time in Vietnam and elsewhere, as well as Australia. Before you joined the Army, you worked on the railways in Adelaide.
Following your career in the Army, you were an ambulance officer and paramedic in Victoria between 1981 until 2000. After almost 20 years of service you were awarded a life membership of the Victorian Ambulance Service in 2000, and now live on a Service pension.
You have no prior convictions.
Physical and mental health
You are described as being in relatively poor health, having been diagnosed with PTSD in 1998. You live with depression, for which you take medication. You also suffer from gastro-esophageal reflux disease.
With respect to your mental health, a report from Dr Matthew Barth, psychologist, was provided to the Court. Dr Barth concluded that you have a number of symptoms that qualify you as meeting the DSM – 5 – TR criteria for the diagnosis of an adjustment disorder with depressed mood. You reported to Dr Barth that during your service in Vietnam you were exposed to extreme situations and levels of violence, and that your later service with Ambulance Victoria was emotionally and physically draining. You were diagnosed with PTSD (Delayed Onset) and underwent extensive psychological and psychiatric treatment through the Department of Veteran’s Affairs and Ballarat Psychological Services. You continue to experience vivid memories of your experiences. Dr Barth noted that you experienced particularly intense reactive depression in the aftermath of being charged with the current matter, exacerbated by the breakdown of your marriage and a sense of hopelessness about your future. You informed Dr Barth about your level of shame at facing criminal charges.
Dr Barth opines that you remain at risk of further deterioration in your moods, and that psychological treatment is unequivocally warranted. You have been assessed by Dr Barth as possessing significant depressive symptoms, social alienation, and suicidal thinking, although denying an active intent to self-harm.
He further expresses the opinion that whilst you do not meet the full list of criteria for PTSD, you nevertheless experience anxiety and hypervigilance because of your experiences in Vietnam, and as an ambulance officer. Dr Barth also concludes you have a cannabis use disorder and that you require substance abuse treatment.
Submissions for the defence
Detailed written submissions were filed on your behalf and I have had regard to them, as well as to supplementary oral submissions.
Your Counsel submitted that you are extremely remorseful for your offending. It was said on your behalf that over the last four years you have had to deal with the consequences of your actions in the lead up to, and on the day, of the drowning of your friend, Mr Vlcek. It was pointed out that you were interviewed extensively by police, that you made a number of admissions, and that you were cooperative. It was submitted on your behalf that you are feeling a sense of relief in pleading guilty to the current offence and now being able to move ahead with your life. You have spoken about the stress of the events that has been significant both for you and your family. You also have been described as experiencing shame as a result of your offending.
It was pointed out on your behalf that your plea of guilty occurred after the committal hearing and after the receipt of an expert’s report, in turn followed by a conference between expert witnesses, which led to a series of jointly made conclusions, and narrowed areas of dispute. As a consequence of how the process evolved, it is accepted that your plea of guilty should be regarded as having been entered at an early stage. Furthermore, it is pointed out that a consequence of your plea of guilty is that Mr Vlcek’s family did not have to endure the traumatic process of a contested criminal trial.
Your Counsel, in addressing the question of delay, submitted that there had been no undue delay caused by the defence, however the involvement of an expert to assess the boat during the COVID period would have compounded the delay in this matter moving forward.
As to the issue of your remorse, your Counsel pointed to evidence of this from a number of medical reports, particularly that of Dr Holly Anderson, in which she referred to the stress and the burden of these events on you over the past four years.
It was submitted that your guilty plea has occurred during the impact of the COVID-19 pandemic on the criminal justice system, and referred to principles stated in Worboyes v The Queen[1] as having application to your case, in particular, that a plea of guilty entered during the pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community was not afflicted by the effects of the pandemic. In keeping with the principles identified in this case, it was submitted that the plea of guilty should result in a perceptible amelioration of sentence.
[1][2021] VSCA 169.
The possibility that Mr Vlcek’s family may take civil legal proceedings against you, with the further prospect that your future financial situation might be seriously impacted as a result, was noted. In this regard I note the information placed before the Court that your boat was not insured at the time of the incident. I make it clear that it is not for this Court to make any determination about whether civil action may or may not eventuate, what might or might be the outcome of any such proceedings, or the impact that such circumstances could have on you financially. I am simply not in a position to say what might happen. However, I do take into account the prospect you are likely to endure ongoing and heightened anxiety at the possibility of civil action hanging over your head and occurring at some time in the future.
Taking all relevant considerations into account it was submitted on your behalf that in the particular circumstances of your offending, and the matters in mitigation advanced on your behalf, the imposition of a non-custodial sentence would meet sentencing purposes.
Submissions for the prosecution
The prosecution filed written submissions and I have had regard to them, as well as to supplementary oral submissions advanced during the plea hearing.
The prosecution submitted that your culpability commenced the moment the boat went into the water with the significant faults which existed with the boat being known to you. In particular, it was observed that the dangerous manner of operation of the vessel included launching the boat on the day of the incident, knowing amongst other things that the boat had multiple holes, the bilge pumps were not functional, having been told that you should get them working, also having been told that the electrical bilge pumps were insufficient to remove water from the hull, and that the boat was unsafe because the flooring had been insufficiently secured to the hulls.
It was further argued that driving the boat under power while it was taking on water and also then anchoring it while it was taking on water add to your moral culpability.
Notwithstanding, the prosecution accepted that the warnings given to you in relation to the boat may have dissipated in circumstances where you had taken the boat out previously and on one successful trip, when only a ‘moderate amount of water’ had entered the hulls.
As to the issue of delay, the prosecution noted that although some four years has passed since the incident date of 5 September 2018, neither party ‘unnecessarily’ held the prosecution up. I note that your Counsel agreed with this approach.
Analysis and conclusions
Nature and seriousness of the offending
As to the nature and seriousness of your offending, there appears little dispute about what happened. You purchased a boat which was in poor condition in a number of material respects, and although you spent a significant amount of money in repairing and attending to some aspects of the vessel, in some important respects the boat still possessed a number of unseaworthy characteristics that have been earlier mentioned. Not enough was done by you, or on your behalf, to bring the boat to a seaworthy standard. However, the evidence is that you did attend to some repairs, and thereby paid attention to some aspects of the boat’s condition.
On the day of these tragic events, a vessel that was in poor condition was launched, and sailed offshore, albeit not far out to sea, but in circumstances when the boat was unseaworthy. The weather conditions do not appear to have been a contributing factor. The boat filled with sea-water due to a number of defects in the integrity of the hulls, and there was no functional pumping system to ensure the safety of the vessel and its occupants. As a result, the boat tipped over, throwing the occupants into the sea. Tragically, one of the passengers drowned. As well, by your actions the other persons on the boat, including yourself, were also put at risk. The person in charge of a sea-going vessel has responsibility for its operation, which also includes responsibility for the safe carriage and passage of the vessel’s passengers. As occurred here, circumstances can change quickly at sea, and the fact that passengers may find themselves ejected into deep water, heightens the potential for danger.
The operation of this boat on the water was dangerous in all the circumstances, and should not have occurred, and you failed in your responsibilities as the owner and operator of the vessel.
The prosecution submitted that the objective gravity of your offending is mid-level, pointing to some aspects of your poor knowledge of boating in open seas, your dated qualifications, and the warnings you were given about the boat. On the other hand, the prosecution accepted there is a state of uncertainty about how the boat would have performed without the faults identified in the expert reports, and as well, some of the faults were not visible to the naked eye. Furthermore, it is unclear to me that such experience as you did have, would have meant you appreciated the apparent speed at which events happened. They happened unexpectedly.
In all the circumstances, I am of the opinion that the gravity of your offending should be assessed as being somewhere between low to mid-level.
Moral culpability
In assessing your degree of culpability, you did have a degree of experience with seagoing vessels, which to some extent must have informed you about the importance of safely operating a vessel. You knew the standards to which your boat should have complied, yet you failed to make sure it was safe. I accept the evidence that the boat you purchased was in poor condition, and despite you having spent a significant amount of money on some aspects of it, it remained in an unseaworthy and poor condition when you departed Portland Harbor for a fishing trip on the day of the events.
You clearly should have known better than to take the boat out without ensuring that it was safe, but you went ahead regardless of the risk, although I am of the opinion that you did not necessarily have a full appreciation of the of the speed at which the boat could be overwhelmed by the entry of seawater, given the nature of the defects to the hulls. Nevertheless, the evidence satisfies me that the boat should not have been on the water. However, in assessing the degree of your culpability I do consider in your favor that you did not intend to do your friend harm and that the prospect that he would drown or be harmed on this fishing trip with your group of friends, would have been an unimaginable outcome for you.
I am satisfied that having considered all the matters bearing on your culpability that on balance, your culpability should be assessed at a low level. This aspect was conceded by the prosecution when pointing to the fact that your culpability more likely arose from ignorance and wilful blindness on your part, and that you acted based on doing a favor for friends, and in all the circumstances you failed to pay due care and attention to the boat before putting to sea. I also take into account that you had taken the boat out on its maiden voyage and the circumstances pertaining to the boat apparently did not raise sufficient alarm with you such that you decided to put the boat in the water a few days later.
Matters in mitigation
As noted, the offence of driving a motor vehicle in a dangerous manner causing death provides for a maximum sentence of ten years’ imprisonment. Your Counsel submitted that in all the circumstances of your offending, and matters pertaining to you, that you should not receive a custodial sentence. On your behalf the following matters in mitigation were advanced in support of this submission.
In respect of personal matters pertaining to your background, your counsel submitted generally that:
(a) You are 78 years of age and you have no previous criminal history;
(b) Four years have passed since the events occurred, to the point where finalization has now been reached;
(c) You have a long history of service to your community, with over 20 years as a paramedic, and to your country, a lengthy period of military service, seeing active operations in a theatre of war;
(d) Your mental health is poor and is at risk of being exacerbated by a term of imprisonment;
(e) You have suffered the loss of a disabled son in circumstances where his ongoing welfare was part of the reason you purchased this boat;
(f) You have expressed both acknowledgment and remorse for the death you have caused; and
(g) There is a risk that you could lose your family home if civil proceedings are pursued by Mr Vlcek’s family. In this regard I note that on 29 September 2020 the Director of Public Prosecutions succeeded in an application to restrain your assets which include your home, and bank account. The fact of that formal step having been taken is likely to add to your stress and anxiety about the future possibility of compensation action being taken. You simply do not know if it will happen, or not.
Verdins considerations
I turn to the consequences of your mental health as this issue was given significant emphasis on your behalf. Relying on the conclusions of Dr Barth, it was submitted on your behalf that principles 5 and 6 of Verdins are enlivened, that is, as at the date of sentencing, a term of imprisonment will weigh more harshly on you than it would on a person of normal health, and that there is a serious risk that your mental health will suffer if you are imprisoned. This aspect was accepted by the prosecution.
I accept the submission that Verdins principles 5 and 6 apply to you. Given all the circumstances that pertain to you, including your age of 78, and compromised mental health I accept that a custodial sentence would impose a significant burden on you, compared to a person who does not suffer from the compromised mental health issue that you experience. I also accept there is a realistic risk that your mental health will suffer if you are ordered to serve a term of imprisonment.
Plea of guilty and remorse
You have pleaded guilty and I also accept that the Worboyes principles apply to your case. I also accept that you are extremely remorseful and ashamed for your conduct. The expression of shame is not one that is so often expressed in courts, and I conclude it is expressed genuinely, and adds to the genuine nature of your response to these events, and full acceptance of your responsibility for what happened. I also accept that your plea of guilty should also be regarded as having relieved Mr Vlcek’s family from having to experience the trauma of a contested trial. It is clear that Paul Vlcek was a longstanding friend of yours, and this has made the impact of your offending more severe for you. I cannot imagine that you ever wanted to do him harm.
Sentencing purposes
It is not in dispute that general deterrence, specific deterrence, just punishment and denunciation are important sentencing purposes for this type of offending. However, it was submitted that in your case, general deterrence and denunciation should be regarded as having less weight than usual. As well, specific deterrence and the protection of the community should also be given little weight given your advanced age, lack of criminal history and otherwise blameless life.
In my opinion, specific deterrence and protection of the community do not require emphasis in your case, and for practical purposes should be absent from consideration. You are of advanced years, over four years have passed since your offending, and you have led a life of contribution to the community through your army service, and long service as a member of the ambulance service. Given all of these factors, I do not regard you as being at risk of further offending in the future.
General deterrence is a significant consideration in this case, but at the same time should not overwhelm the sentence to be passed. Whilst the numbers of cases involving the failure of boat owners to operate their vessels appropriately are likely to be significantly less in numbers by comparison to dangerous driving cases involving the misuse of motor cars, a message does still need to be sent to the operators of marine vessels that they must ensure their vessels are operated safely and that they comply with the applicable marine regulations. As I have observed, the consequences of the failure to operate vessels safely can often mean that people affected and forced to leave a distressed vessel are likely to be immediately confronted by many risky circumstances that the sea can impose on them. You failed to operate a vessel that was seaworthy, and you knew it to be in the poor condition that it was, such that your operation of it was dangerous in all the circumstances of the case.
Comparative cases
It appears there are very few previous comparative sentencing cases involving dangerous driving causing death through the operation of a boat. Reference was made to The Queen v McKinnon[2] and DPP v Mouat.[3] Neither decision provided significant assistance, particularly as McKinnon was a case determined before the application of the Category 2 sentencing provisions. I do note the Category 2 provisions applied to the latter case of Mouat. Notably, neither case resulted in the imposition of a custodial sentence.
[2][2015] VSC 619.
[3][2022] VCC 1546.
Whilst some sentencing factors and principles are apposite, in my opinion, little useful assistance can be gained in the present case from a consideration of sentencing outcomes in cases of dangerous driving causing death involving the driving of motor cars.
Category 2 offending
As observed, the offence you are charged with is a Category 2 offence within the meaning of s 3(10) of the Sentencing Act 1991.
Being a Category 2 offence, s 5(2H) of the Sentencing Act is enlivened, which means that I am required, as the sentencing judge, to impose a term of imprisonment without a community correction order (CCO) unless one of the exceptions in this section applies.
The position in relation to Category 2 offending as I have set out above is agreed between the parties. The relevant exception provisions are s 5(2H)(c) and (e). Those provisions provide as follows:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c)the offender proves on the balance of probabilities that—
…
(ii)the offender has impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment; [4] or,
…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
[4]This being the wording of the relevant section at the time of the offence.
Impaired mental functioning
You were diagnosed by Dr Barth as meeting the DSM-5-TR criteria for Adjustment Disorder with Depressed Mood. The prosecution accepts that you have impaired mental functioning within the meaning of s 5(2H)(c)(ii), and that first test in the sub-section is met.
Your counsel submitted that your diagnosis is sufficient to demonstrate that a term of imprisonment on you would be significantly more than the ordinary burden or risks of imprisonment. Your counsel relied upon the test as established in the case of DPP v Lombardo [2022] VSCA 204. In reliance upon that test, it was submitted that:
(a) you suffer from a mental illness being the diagnosis of Adjustment Disorder – with Depressed Mood;
(b) your mental illness is present as at the time of sentence;
(c) there is evidence, as stated by Dr Barth, that you are likely to find imprisonment to be ‘more arduous’ when compared against a prisoner who does not suffer from a mental illness. Of note, Dr Barth refers to your pre-existing trauma and current depression, the latter of which is likely to be exacerbated in a long-term custodial environment. Dr Barth specifically recommends that given you are at significant risk of experiencing deterioration in mood in the period immediately following sentencing, it would be ‘especially important’ that you receive professional assistance, said to be anti-depressant medication and monitoring to prevent any impulsive acts of self -harm, at that time.
With respect to the second part of the s 5(2H)(c)(ii) test, the prosecution submits that that there is insufficient evidence to demonstrate that your diagnosis would result in you being subject to significantly more than the ordinary burden or risks of imprisonment. The prosecution submits that while Dr Barth’s report shows that there would be ‘some effect’ on you, that is not sufficient and that the greater burden or risk on you must be significant. The prosecution submits that the anticipated effects of imprisonment described by Dr Barth are ‘all too common for persons facing imprisonment – particularly imprisonment for the first time’.
I am unable to accept this submission. The evidence from Dr Barth establishes on the balance of probabilities that as at the time of sentencing you have impaired mental functioning as a result of your diagnosis of Adjustment Disorder with Depressed Mood by the DSM-5-TR criteria. Dr Barth opined that there is an appreciable risk that your mental state could deteriorate under circumstances of further stress and there is a need for ongoing professional treatment. I also note Dr Barth’s comments that you ‘continue to suffer from residual trauma-related symptoms due to your experiences in Vietnam and as a MICA paramedic’.[5]
[5]Report of Dr Barth at para 49(3).
Relevantly, Dr Barth opined that:
It is of course a truism that anyone before the Courts for a significant offence will experience noteworthy emotional distress. In Mr Armstrong’s case this is rendered more onerous by his pre-existing trauma and current depression. In light of this, I would expect that he would experience a relatively lengthy period of difficulty adjustment to the custodial environment. In the longer term I would anticipate the continuation of more severe depressive symptoms than is typical of other prisoners. In particular, he is at significant risk for experiencing deterioration in his mood in the period immediately following sentencing and it would be especially important that he be provided with close professional assistance at this time. At a minimum, this should encompass the continuation of Mr Armstrong’s antidepressant medication and monitoring to prevent any impulsive acts of self-harm. Mr Armstrong is therefore likely to find the custodial environment to be more arduous than a prisoner who does not suffer from his mental health issues.[6]
[6]See Dr Report at para 51.
As a result, it is my opinion that your impaired mental functioning would result in you being subject to significantly more than the ordinary burden or risks of imprisonment, and that these matters have been established as required for the application of s 5(2H)(c)(ii) of the Sentencing Act 1991.
I note the prosecution’s submission that even if one or both tests are met, the matter cannot be described as of low moral culpability and low objective gravity which might give rise to a non-custodial sentence. The prosecution cited Bell v The Queen[7] in support of this proposition. I have considered this decision and do not read the conclusions of the court as mandating that in all the circumstances of you and your offending, that a custodial sentence is the only available sentencing option.
[7][2018] VSCA 281.
Substantial and compelling reasons
In light of my finding regarding the application of s 5(2H)(c)(ii) of the Sentencing Act1991, it is unnecessary for me to come to any conclusions about whether your circumstances satisfied s 5(2H)(e) of the Sentencing Act 1991.
Sentence and declarations
Robert Armstrong, I have taken into account the nature and gravity of the offence you committed, and that you have pleaded guilty to the offence before the Court, that you are now 78 years old, and have compromised mental health, which I have noted in some detail. This matter has taken four years to progress to this point, and I have taken into account the impact of that delay on you. I have no doubt you possess genuine remorse for causing the death of your friend. In my opinion, considering everything advanced on your behalf, little purpose will be achieved by imposing a sentence of imprisonment on you for your offending. However, there must be a degree of punishment, and some emphasis on the principle of general deterrence.
In coming to this decision I have particularly noted the indication from Mrs Vlcek, the widow of Mr Vlcek, as to the need not to impose a sentence of imprisonment upon you. In the circumstances of the impact of your offending on her, in my opinion this very charitable observation carries weight.
In the circumstances you are convicted and sentenced to a Community Corrections Order for a period of two years, with a condition that you perform 200 hours of unpaid community work. You will also be convicted and fined $5000.
Marine licence
The prosecution also submitted that under s 171(2) the Maritime Safety Act 2010, the Court must cancel and disqualify you from obtaining a marine licence for at least six months for an offence committed under s 319(1) of the Crimes Act 1958. Accordingly, I will order that any marine licence held by you is cancelled and you are disqualified from obtaining a further licence for six months from the date of sentencing.
The prosecution also seeks disposal orders in relation to the boat and the seized property therein. I will make those orders.
Section 6AAA declaration
I declare that but for your plea of guilty in this matter, I would have sentenced you to 24 months’ imprisonment, with a non-parole period of 12 months.
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