Director of Public Prosecutions v Bartlett

[2024] VCC 621

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-23-01616

DIRECTOR OF PUBLIC PROSECUTIONS

v

Shaun BARTLETT

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2024
DATE OF SENTENCE:	5 July 2024
CASE MAY BE CITED AS:	DPP v Bartlett
MEDIUM NEUTRAL CITATION:	[2024] VCC 621

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Culpable driving causing death (1 charge) – plea of guilty – standard sentence – category 2 offence – blood alcohol concentration of 0.262% - culpability related to driving whilst intoxicated - evidence of genuine remorse – no prior convictions

Legislation Cited:         Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)

Cases Cited:R v Whyte [2002] NSWCCA 343; DPP v Neethling [2009] VSCA 116; Bell v The Queen [2018] VSCA 281; R v Oates [2007] VSCA 59

Sentence:  6 years 6 months, non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R Pirrie	Office of Public Prosecutions
For the Accused	Ms S Wendlandt	Victoria Legal Aid

HER HONOUR:

1Shaun Bartlett, you have pleaded guilty to one charge of culpable driving causing death, contrary to s 318(1) of the Crimes Act 1958. This offence carries a maximum penalty of 20 years’ imprisonment.

2Culpable driving causing death is a category 2 offence under the Sentencing Act 1991 (“the Act”)[1] and attracts a mandatory custodial order (other than a sentence of imprisonment imposed in addition to making a community correction order) unless a relevant exception applies. I note that no exception is relied upon in your case. I must also make a finding under section 89C of the Act that you were under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

[1] s 3 Sentencing Act 1991 (Vic).

3The offence of culpable driving causing death is an offence subject to the standard sentence regime.[2] The standard sentence regime is designed to provide a “legislative guidepost” for offending which, considered objectively, is of a mid-level of seriousness for an offence of that kind. The standard sentence for this offence is 8 years’ imprisonment.[3]

[2] Ibid s 5A.

[3] See s 318(1A) Crimes Act1958 (Vic).

4As this offence is a “serious motor vehicle offence” under section 87P(c) of the Act, I am required to cancel your driver’s licence and disqualify you from driving for at least 24 months, effective from today.

5The Act requires that, unless the interests of justice dictate otherwise, any non-parole period for a standard sentence should be no less than 60% of the standard sentence.[4] 

[4]Sentencing Act, above n 1, ss 11A(1) and 11A(4)(c).

6In sentencing you, I have taken into account all of the written material tendered as well as the oral submissions of counsel.[5] The circumstances of your offending are set out in the Amended Summary of Prosecution Opening dated 21 March 2024, which was accepted by your counsel, and I sentence you on the basis of the facts set out in that document. I summarise the offending briefly.

[5] Amended Summary of Prosecution Opening for Plea, dated 21 March 2024, Defence Submissions dated 26 April 2024, documents tendered on behalf of the accused including 6 character references, a letter from Odyssey House dated 12 December 2023, psychological report of Jeff Cummins dated 19 February 2024 and a Sentencing Snapshot from Sentencing Advisory Council dated June 2023.

Details of offending

7On 28 January 2023, you were with your two friends – Justin Willman (the deceased) and David Breach – at a makeshift camp made by the three of you near the dam on the rural property you were renting in Stonehaven. You and Mr Breach had started drinking alcohol in the early afternoon, and Mr Willman joined you later in the evening. At times, you drove your utility to the house on the property to retrieve alcohol and other items for the camp.  

8Shortly before the accident, Mr Breach heard you and Mr Willman talking or joking about your apparent inability to find reverse gear after hitting a tree while trying to drive to the house to retrieve some pizza. Mr Breach then heard you drive off away from the house. It appears that you accidentally reversed the utility over Mr Willman, killing him instantly. Mr Breach walked to the dam where he found Mr Willman lying on the ground, unresponsive, with multiple injuries. Mr Breach called his wife, who then called triple zero. Emergency services pronounced Mr Willman dead at the scene.

9After accidentally striking Mr Willman, you drove around the property, hitting some fence posts before hitting a culvert on the road outside the property. Emergency services found you intoxicated and unconscious on the ground outside the driver’s side of the utility, approximately 300 metres away from the campsite. You were holding your keys and phone.

10You were then taken to Geelong Hospital and a sample of your blood was taken. You had a blood alcohol level of 0.262%.

Record of Interview

11You were interviewed by police at Geelong Police Station on 29 January 2023. You stated that you had no recollection of the crash. You stated that you had some memory of drinking around half a slab of beer before the incident, and that you were at the camp near the dam. You conceded that it was possible you were driving to the house to retrieve pizza. You were very distressed and remorseful for your involvement in Mr Willman’s death.

12After the interview, you were arrested and your driver’s licence was suspended.

Guilty Plea

13You pleaded guilty at the committal mention on 12 September 2023. You spent two days in police custody from your arrest on 29 January 2023 before being granted bail at the filing hearing on 30 January 2023. You were remanded at the plea hearing on 1 May 2024, and have served 67 days of pre-sentence detention, not including today.

Victim Impact Statements

14A total of 10 victim impact statements were provided by Mr Willman’s family and friends and these were read out in court.

Lachlan Willman

15Mr Willman’s son, Lachlan, said in his statement[6] that for some time after the loss of his father he was in a state of shock and disbelief. He was overwhelmed with grief and retreated into his home due to anxiety about the possibility of further loss. He misses his father’s frequent messages, contact and support. He feels he has lost not only a father, but a friend and is deeply saddened that he can no longer share with him their common interests in films and music nor celebrate important milestones (such as getting his driver’s licence) with him.

Sian Willman

[6] Dated 13 February 2024, Exhibit 9.

16Mr Willman’s daughter, Sian, said in her statement[7] that she was extremely distressed after her father’s death, particularly as she never got to say goodbye. She was very upset at being told of the extent of his physical injuries and her distress was so great that she could not organize his funeral. His loss has had an enormous emotional impact on her life. She sees the world differently now. She has had nightmares, become more anxious, fearful and afraid of the future, as well as angry and short-tempered. She has been reluctant to leave home, where she feels safe. She has separated from her fiancé. She has had to take medication in order to complete her final nursing placement. She misses his constant phone-calls to her, their laughter together and the Sunday morning breakfast he would make her. She feels robbed of the ability to celebrate all her future milestones with him.

[7] Dated 5 February 2024, Exhibit 11.

17She said that her father was a well-known motorcycle mechanic and highly respected in the Geelong motorcycling community. He was always willing to stop and help anyone when needed. He was about to start a new job and had recently moved into a new home.

Yvonne Willman

18One of Mr Willman’s five sisters, Yvonne Willman, said in her statement[8] that losing her brother has caused her enormous grief and pain and that she has found it difficult to come to terms with his death. News on the television or radio, or songs often remind her of the incident. Whereas before his death she was an optimistic and extroverted person, she has now become a sad and bitter person who is pessimistic about life. Their family gatherings on special days have been badly affected by his absence, and the family has found it very difficult to divide up his personal effects.

Michelle Willman

[8] Dated 30 April 2024, Exhibit 4.

19Mr Willman’s eldest sister, Michelle Willman, stated[9] that life since the death of her brother has been a nightmare and very difficult for their parents to bear. Due to her grief, she has had to resume psychological therapy and has put off elective surgery. She has become isolated and rarely goes out. His absence at family celebrations has been very difficult.

James Grundell

[9] Undated, Exhibit 6.

20James Grundell, who is Mr Willman’s brother in-law, stated[10] that Mr Willman was also his best friend and that his death has had a major impact on his life. As the executor of Mr Willman’s estate, he has spent a great deal of time and energy on settling Mr Willman’s business and personal affairs. 

Nicole Grundell

[10] Dated 1 May 2024, Exhibit 5.

21Another of Mr Willman’s sisters, Nicole Grundell, who is two years younger than Mr Willman, stated[11] that she was very close to him and that they talked or texted each day. She felt safe knowing that he was looking out for her. She feels vulnerable without him. Losing him has made her question her faith, her joy in life, and has negatively affected her ability to cope emotionally at work in a busy hospital environment. She has taken all available leaves from work, has isolated herself from her friends, but still tries to protect her three sons from her grief. Her difficulties have been compounded by a lack of support of other family members who are coping with their own grief. She continues to receive psychological support for her grief, which is intensified at times like Christmas.

Deidre Thompson

[11] Dated 12 February 2024, Exhibit 8.

22Another of Mr Willman’s sisters, Deidre Thompson, said in her statement[12] that since her brother’s death, she has experienced shock, grief and insomnia. She has observed an outpouring of grief from his elderly parents, children, siblings, cousins and many of his friends. She stated that her family’s lives have changed forever and that birthdays, Christmas and special occasions are very difficult.

Linda Willman

[12] Dated 4 October 2023, Exhibit 12.

23Mr Willman’s ex-wife, Linda Willman, stated[13] that Mr Willman’s untimely death has had an immeasurable impact on his two children. She described Mr Willman as a “man like no other”, who would go above and beyond for others. She said that she and his children will be dealing with his loss for the rest of their lives.  

Virginia Willman

[13] Dated 11 February 2024, Exhibit 13.

24Mr Willman’s niece, Virginia Willman stated[14] that she misses her only uncle, who did not get to meet the baby she had a week before he died. She used to see him regularly at the shops and would care for his animals when he was away. She is sad when going to places where she used to see him. His death has worsened her anxiety and has affected her personal and work relationships. She said that her mother had become reclusive after Mr Willman’s death and no longer helped her with her children. Ms Willman feels that the family is broken and she finds herself ringing a family member each day to share her grief.

Lorena Quinlivan

[14] Dated 25 February 2024, Exhibit 7.

25Lorena Quinlivan, friend and sister-in-law of Mr Willman, stated[15] that she has known the deceased since he was a child, and he had become her confidant in recent times. She describes him as having a beautiful heart and soul, and that she feels upset that she was never able to say goodbye to him.

[15] Undated, Exhibit 14.

Prosecution submissions

26Counsel for the prosecution did not file any written submissions. In oral submissions, counsel said that he had been unable to find any comparable cases given the short time frame of your driving prior to striking Mr Willman with your vehicle. However, it was submitted that the offending is objectively serious and that your moral culpability for this offence is high because you were intoxicated to such a level that you were unable to control the motor vehicle. This much was clear from the fact that your vehicle struck Mr Willman and that after this you drove south, collided with a post, drove towards the highway, and, fortunately, struck a ditch before reaching the road. In the circumstances, it was submitted that the only appropriate disposition is one of the imposition of a term of imprisonment and a non-parole period.

Plea in mitigation

27I turn to the matters raised on your behalf by your counsel.

Personal circumstances

28Your personal circumstances were set out in the psychological report of Mr Jeffrey Cummins.[16] You grew up in the Geelong area. Your parents separated when you were eleven years old and as a result your home life was split between them and was quite disruptive. You attended high school until year 11.

[16] Dated 19 February 2024, Exhibit C.

29You were introduced to alcohol at 16 years of age, and started drinking at work and then drinking excessively on weekends. You have smoked cannabis daily since the age of 16, and most recently started using a vaporiser. You have not used other illicit drugs.

30After high school, you worked at a winery and a tourist attraction for approximately two years. You then commenced an apprenticeship as a light engine mechanic in 1998, which you completed in 2002. This is where you first met Mr Willman. You became friends and that friendship continued over 20 years until the date of his death.  

31You worked as a plant operator and machine operator for three different companies from 2008 until the time of the offending.

32After your arrest, your licence was suspended, which made it difficult for you to travel to work. However, you made alternative arrangements and were rehired by a former employer as a machine operator on a casual basis. You have not sought additional work since January 2024 in anticipation of a term of imprisonment arising out of this proceeding.

33You had a relationship with the mother of your children, Lisa Pyle, for 20 years. Although that relationship has ended, you continue to live with her and your children, now 18 and 16 years of age, so as to provide them with the parental support they require. Ms Pyle is a respite carer. Each of your children works on top of studying.

34You do not have any prior convictions.[17]

[17] You were fined $500 and had your licence cancelled for 14 months in February 2001 for driving with a blood alcohol level of .144% and for failing to report an accident to the nearest police station.

35You described yourself to Mr Cummins as a functioning alcoholic prior to this accident, and said that your alcohol abuse negatively affected your personal relationship with your ex-wife. Mr Cummins considered that you were suffering from an alcohol use disorder at the time of the accident, and that this condition is now in early remission as you have not drunk alcohol since that day.[18] You have attended counselling at Odyssey House and Alcoholics Anonymous between February and August 2023.

[18] Report of Mr Jeffrey Cummins dated 19 February 2024, 4 [26], 5 [32].

36You told Mr Cummins that you felt frustrated that you could not recollect the incident and he described you as “riddled” with severe shock, grief, regret and remorse at having caused Mr Willman’s death.[19] Up until and including the day of the accident, the site of the accident was a place where you escaped to drink and laugh with friends. Since the accident, you cannot face going there for that purpose. You have placed a cross there in memory of Mr Willman. Mr Cummins considered that you are exhibiting symptoms of reactive anxiety and depression connected with the accident which may develop into a major depressive disorder.[20] He also considered it likely that after being sentenced you will develop symptoms of post-traumatic stress disorder.[21]

Character references

[19] Ibid 7 [48].

[20] Ibid 6 [40].

[21] Ibid 7 [49].

37Your counsel tendered six references in support of your good character.

38Your mother, Jan Taylor, says[22] that your actions have affected a lot of people and will forever haunt you. She states that you have a solid work history which began while you were still at school, and you helped her during holidays at the vineyard and with her animals. You have raised two beautiful daughters and have enjoyed your life up until the night of the incident.

[22] Dated 20 March 2024, Exhibit B.

39Your father, Brian Bartlett, states[23] that you are intelligent and have a strong work ethic. Although you were not academically inclined and left school at an early age, you immediately obtained a part-time job and were shortly after offered a small engine mechanic apprenticeship where you juggled both jobs. After completing your apprenticeship, you have had consistent work with different civil engineering firms. You have never been out of work and have always been well respected and sought after. He describes you as a devoted partner and father, and an honest man who takes responsibility for his actions. He notes that while you would drink excessively on weekends prior to the accident, since then you have stopped drinking and have sought help to address your drinking problem.

[23] Dated 16 April 2024, Exhibit B.

40Nikki Cook is your cousin and she grew up with you. She states[24] that you had a difficult upbringing with parents who abused alcohol and verbally and physically abused you. Despite this treatment, you are a respectful person who has always treated her with love and care. You have maintained steady employment and constantly put others’ needs before your own. She says that since the accident you have been criticized heavily on social media but have accepted this criticism because of your feeling of guilt and remorse. She says that she will support you when you are released from prison.  

[24] Dated 22 January 2024, Exhibit B.

41Gareth Keats, one of your best friends, describes[25] you as a hardworking, honest and loyal man. You are always willing to help and also to learn from past experiences. He states that you are a proud parent with a strong moral compass and you are a devoted father. You have been grief-stricken by the loss of your close friend and distressed by your current circumstances.

[25] Dated 19 February 2024, Exhibit B.

42Curran Brown, another longstanding friend, describes[26] you as a resilient and kind man always committed to doing the right thing. You faced challenges in your childhood, including your parents’ divorce and other familial issues, but you have persevered with an ability to make the most out of difficult situations. He said that you have always tried to learn from your mistakes and experiences. You are a loving father who has always provided financial and emotional support to your family and you have never been without a job since leaving school. He knows that you are suffering from grief and turmoil since the accident but says that this one very tragic act ought not to define you.  

[26] Dated 21 March 2024, Exhibit B.

43Jan Brunt, a friend who has not known you for a long time, states[27] that you are a genuine, responsible, honest, kind-hearted man and caring father and partner. You are a man of substance who understands the value of life and you spoke honestly to him about the night of the incident. He says that you want to do what is right and that you take responsibility for your actions. He will support you when you are released from prison.  

Submissions of counsel

[27] Dated 10 April 2024, Exhibit B.

44Your counsel stated that you acknowledge the inherent seriousness of your offending, that you alone are responsible for driving while intoxicated, that there was no reason for you to get into the car and drive, and that you were clearly incapable of doing so. For this reason, your counsel conceded that your moral culpability is high. However, your counsel submitted that your offending lacked a number of aggravating factors commonly seen in offences of this kind,[28] in that you were not driving at excessive speed, or erratically for a time before the accident, no-one else was injured, and there was no other offending or poor conduct. For this reason, it was submitted, your offending falls on the lower side of the mid-range of seriousness for an offence of this kind.

[28] R v Whyte [2002] NSWCCA 343, [216–217]; DPPv Neethling [2009] VSCA 116, [30–31]; Bell v The Queen [2018] VSCA 281; R v Oates [2007] VSCA 59.

45It was conceded that denunciation, just punishment and general deterrence remain key considerations in sentencing you.  

46However, it was submitted that in the light of: the absence of prior convictions; your long work history; the character references referred to above; your abstinence from alcohol and the sessions you have undertaken to address your drinking problem in 2023; your excellent work history; as well as the support you have from family and friends, the risks of your reoffending are low, and your prospects of rehabilitation ought to be regarded as reasonable. For these reasons, the sentencing principles of specific deterrence and protection of the community carry less weight than they would otherwise in the sentencing process.  

47Your counsel also relied on your cooperation with police, your early plea of guilty prior to a committal hearing, the genuine remorse you have shown in your Record of Interview and in your consultation with Mr Cummins, and Mr Cummins’ opinion that you are at risk of further mental deterioration in prison.

48In all the circumstances, your counsel conceded that the only available disposition is one of a term of immediate imprisonment and a non-parole period. It was also conceded that your offending attracts the cancellation and disqualification of your driver’s licence for 24 months.

49Your counsel acknowledged that the standard sentence of 8 years for the offence of culpable driving causing death is a sentencing guidepost.[29] She submitted that the facts in this case differ greatly from other comparable cases (which postdate the introduction of the standard sentencing regime) which are referred to in the Sentencing Snapshot from the Sentencing Advisory Council. According to that document, the median length of imprisonment was 8 years and the average length of imprisonment was 7 years and 7 months.

[29]Sentencing Act, above n 1, s 5A(1)(b).

50She submitted that because of the absence of aggravating factors, your lack of prior convictions, your remorse, evidence of your rehabilitation and early resolution of the matter, a sentence of less than the standard sentence of 8 years’ imprisonment is warranted. She also submitted that it is in the interests of justice in this case to impose a non-parole period which is less than 60% of the head sentence.  

Sentencing considerations

51This is a tragic case, which shows yet again how the lives of so many can be shattered within the space of a few moments. You were hosting your two friends on your country property, drinking and laughing together by the dam in the evening. You were too intoxicated to drive but got into the car to get some food from the house. Almost immediately you accidentally reversed over your friend, Mr Willman, killing him instantly, without knowing you had done so, and kept driving for a few minutes until you got stuck in a culvert.

52In the context of this tragedy, I acknowledge that it may be difficult for Mr Willman’s family members to sit through the analysis of the relevant sentencing considerations which apply to your offending. They are of course preoccupied by having to deal with the consequences of Mr Willman’s passing for the remainder of their lives.

53I am obliged, however, to address the relevant sentencing principles as they apply to your offending, and I do so as follows.

54The basic purposes for imposing a sentence are to: denounce the offending; punish it appropriately; deter the offender and others from committing similar offences; and protect the community. I must balance these considerations with the community’s interest in ensuring that, as far as possible, offenders are rehabilitated and reintegrated into society.

55In sentencing you, I must have regard to all of the matters set out in section 5 of the Act. This includes: the maximum penalty, which is 20 years’ imprisonment; current sentencing practices; the standard sentence of 8 years’ imprisonment for this offence; the circumstances of the offence; the impact on the victims, and your personal circumstances.

56I was not referred by counsel to any comparable cases because none are directly similar to your offending in the sense of being attributable to a degree of intoxication incompatible with the ability to control a motor vehicle. Many other cases involve additional offences being committed at the same time, or offenders with prior criminal records, or conduct involving a number of offences or aspects of the conduct which aggravate the seriousness of the offending (such as speed, extended periods of erratic driving, and so forth).

57I take into account the standard sentence of 8 years’ imprisonment for this offence as a guidepost in relation to conduct which objectively falls in the middle of the range of objective seriousness for this type of offence. I note that the standard sentence does not determine the sentence to be imposed upon you but is one of factors to be taken into account in determining an appropriate sentence.

58Viewed objectively, your conduct in driving a motor vehicle with the blood alcohol concentration of 0.262% is at the middle of the range of objective seriousness for this type of offence. Added to the objective seriousness of the offence is the devastating impact that it has had on the Willman family and friends, as set out in the victim impact statements that I have just referred to.

59However, the sentencing process requires consideration of a number of additional matters. I accept the matters put in mitigation on your behalf: namely, your early plea of guilty, cooperation with police, genuine remorse as shown in the Record of Interview, your discussion with Mr Cummins and the discussions referred to by those who provided references for you. I also acknowledge that you bear huge remorse for causing the death of your friend by your driving whilst so intoxicated, and that you will have to live with the guilt of doing so for the rest of your life. 

60When combined with your lack of prior convictions, solid work history, general excellent character, abstinence from alcohol and completion of counselling for your abuse of alcohol, along with the support you have from family and friends, I consider that you have excellent prospects of rehabilitation and are most unlikely to reoffend.

Sentence

61In all the circumstances, I sentence you as follows.

62Please stand. On the charge of culpable driving causing death, you are sentenced to six and a half years’ imprisonment, with a non-parole period of four years.

63I declare that there are 67 days of pre-sentence detention, not including today, which are to be deducted administratively from this sentence.  

64Under section 89C of the Act, I find that you committed the charge of culpable driving causing death whilst under the influence of alcohol. I direct that this finding be entered into the records of the Court.

65As this offence falls within the definition of a “serious motor vehicle offence” at section 87P(c) of the Act, I declare your driver’s licence is cancelled and you are disqualified from driving for 24 months.

66I indicate under section 6AAA of the Act, that, but for your plea of guilty, I would have sentenced you to nine years’ imprisonment with a non-parole period of five years and four months.