Director of Public Prosecutions v Beaston

[2024] VCC 1288

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01586

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONSTANCE BEASTON

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Wangaratta
DATE OF HEARING:	30 July 2024
DATE OF SENTENCE:	2 August 2024
CASE MAY BE CITED AS:	DPP v Beaston
MEDIUM NEUTRAL CITATION:	[2024] VCC 1288

REASONS FOR SENTENCE

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Subject:  Dangerous driving causing death

Catchwords: Category 2 offence, subject to s5(2H) of the Sentencing Act,

exceptions to custodial sentence s5(2H)(c)(ii); s5(2H)(e)

Legislation Cited Sentencing Act 1991:

Cases Cited:DPP v Lombardo [2022] VSCA 204, R V Verdins – [2007] VSCA 62

Sentence:                 3 year community corrections order; licence cancellation 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Ms A. Roodenburg

HER HONOUR:

1Constance Beaston, you have pleaded guilty to one charge of dangerous driving causing death, for which the maximum penalty is a term of imprisonment of 10 years.  You entered your plea on 17 July 2024 in this court at a sentence indication hearing which was conducted in Melbourne.

2At that hearing I indicated that upon a plea of guilty, I would sentence you to a correction order and that is what I intend to do today.  This case involves the death of Adrian Rawlings.  Mr Rawlings died when his car was struck by your car on the Great Alpine Road at around 5.00 pm on 29 October 2021.  Mr Rawlings was only 47‑years‑old when he died.

3You were coming off the Hume Highway and you took the Great Alpine Road exit, intending to turn right and to travel into Wangaratta.  You came to a stop, or at least a partial stop before making your right turn.  But then drove onto the Great Alpine Road without seeing Mr Rawlings vehicle which was travelling from Wangaratta towards Myrtleford and was to your right.  Your car collided into the rear passenger side of Mr Rawlings car.

4Mr Rawlings lost control of his car, it rolled across a lane of oncoming traffic and came to rest in an adjacent field on its roof, about 88‑meters from the point of impact.  Mr Rawlings died at the scene at about 5.24 pm as a consequence of the injuries he suffered.  You remained at the scene in the aftermath of the collision.  You were highly distressed and repeatedly stated that you were sorry.  It is now my duty to sentence you for this crime.  The sentence I impose is not a measure of the worth of Mr Rawlings' life and the sentence I impose cannot undo the tragic events of 29 October 2021.

5It cannot relieve the suffering of Mr Rawlings' widow, his children and his wider family.  The sentence I impose involves a consideration of the objective circumstances of your conduct, your moral culpability and the imposition of an appropriate criminal punishment in consideration of all the circumstances of your offending and your personal circumstances.

6The relevant circumstances of your offending are as follows.  At the time you collided into Mr Rawlings' car, the weather was fine and clear and the visibility and driving conditions were good.  The speed limit on the Great Alpine Road was 100 kilometres per hour and at the relevant time, traffic was moving in both directions.

7The condition of the road and its markings was good.  You would have been able to see Mr Rawlings approaching vehicle from a distance of around 250 metres.  There were no mechanical faults, either to your vehicle or to Mr Rawlings' vehicle.  You were obliged, upon entering a high speed thoroughfare to pay proper care and attention, you did not.  You failed to see Mr Rawlings' approaching vehicle and to give way.  Yours is an inexplicable failure.  There are a number of aggravating features often seen in cases of dangerous driving which are absent here.

8You were not speeding or driving erratically in any way.  You were not alcohol or drug affected, you were not fatigued and you were not using a mobile phone or otherwise distracted.  And you do not have a history of dangerous or erratic driving.  You were a probationary driver with no history of traffic infringements.  Your conduct involved only momentary inattention and your moral culpability is therefore low.  However the consequences of your failure to drive with sufficient attention are enormous.

9Victim impact statements were tendered from two of the witnesses to the collision.  They each described their ongoing trauma.  A victim impact statement was tendered from Mr Rawlings' widow, Narelle Rawlings and it was read in court by her friend, Ms Robinson.  Ms Rawlings says she and her husband were inseparable from the time they met in 1998.

10They were unable to have children so permanently fostered three children who were only ten, seven and three when their father died.  Ms Rawlings movingly described how she and her husband provided a secure and loving home for three vulnerable children and looked forward to giving the children opportunities and experiences as part of a loving family unit.

11But she now finds herself a sole parent and describes feeling overwhelmed bringing up three children on her own while battling her own grief and loneliness.  Mr Rawlings was a devoted husband and father and was deeply loved by his wife and children and by all his family.

12I turn now to consider your personal circumstances and matters that were raised in mitigation of sentence at your plea.  You were born in December 2000.  You were 20 at the time of the collision and you are now 23.  You live with your parents and your two younger siblings, both of whom have been diagnosed with autism, dyslexia and ADHD.

13You attended school through to the conclusion of Year 12.  You experienced bullying in the later years of primary school and early years of secondary school and this led to an episode of significant depression and a suicide attempt.  You have never abused drugs or alcohol.  Character references were tendered from your mother, father, sister and a friend and your employer.

14Your mother and father describe you as a responsible, kind, compassionate person who helps care for your younger siblings with disabilities.  Your mother and your sister say that since the collision, your life has stopped and that you experience ongoing grief for Mr Rawlings' death.

15Dierdre Tobin is your manager at the Albury-Wodonga Health where you have worked as a concierge which I understand is an administrative position, since May 2021.  She describes you as a reliable and respectful employee.  At the time of the collision you were doing well.  You were two years into a nursing degree at La Trobe University at Wodonga.  You had a job, you had friends and you had just begun a relationship.  Since the collision, you have been in a state of significant and unabated psychological decline, reluctant to leave your home except to go to work.

16All of which is set out extensively in the medical and psychological material filed on your behalf.  A summation of which is as follows.  You attended first at your general practitioners on 2 November 2021 and returned on 15 December 2021 distressed and having panic attacks.  You were referred to Dr Leo van Biene, a consultant psychiatrist by general practitioner Dr Laura Bidstrup who in her referral letter of 25 February 2022 says that you were not responding well to medication prescribed to treat your mental health.

17Dr van Biene gives the opinion that you were suffering a post-traumatic stress disorder ('PTSD') and that was referrable to the collision as well as anxiety and depression.  You were referred to psychologist Lisa Jackson in October 2022.  You have attended ten counselling sessions with Ms Jackson between October 2022 and March 2024.

18Ms Jackson found you to be highly traumatised and presenting with symptoms consistent with PTSD.  Ms Jackson says that despite counselling and medication, your mental health was not stabilising and that her testing confirmed that you were still experiencing extremely severe levels of depression, anxiety and stress.

19You continued to experience panic attacks, remained consumed with thoughts of the victim's death and had suicidal thoughts.  Ms Jackson gives the opinion that 'in the event of a custodial sentence, it is highly likely she will experience a deterioration in her mental health, indicating the need for monitoring and mental health involvement'. 

20I turn now to the report of Mr Simon Candlish, consultant psychologist dated 2 June 2024.  Mr Candlish interviewed you on 17 May 2024.

21He gives the opinion that you suffer from a persistent depressive disorder with anxious distress and generalised anxiety disorder, referable to the collision.  He did not, however, consider that you met the criteria for PTSD.  He notes that before the collision you had a history of pro-social behaviour, as well as good interpersonal functioning and self-direction.

22He says you presented at interview in a highly distressed state and that you expressed remorse and shame.  Mr Candlish gives the opinion:

'Ms Beaston is considered a vulnerable individual in terms of her mental health and characterological issues, and her susceptibility to worsening mental health regarding a potential period of incarceration'. 

'She appears much more likely to experience overwhelming emotions at the prospect of incarceration with increased risk for severe symptoms of depression and anxiety increasing the risk for self-harm'. 

23Turning finally to Associate Professor Andrew Carroll, consultant forensic psychiatrist whose report is dated 6 June 2024 and who examined you on 4 June 2024.  Associate Professor Carroll says you presented in a high state of persistent distress. 

24Associate Professor Carroll gives the opinion that you are diagnosable with PTSD and an adjustment disorder with depressed mood.  Both diagnoses referable to the collision.  On the basis of past pro-social behaviour and lack of criminal offending and in the absence of any antisocial personality features, he considers your risk of reoffending to be low.  In terms of rehabilitation, he says from a psychiatric perspective you would benefit from intensive trauma-focused treatment and review by a treating psychiatrist with special expertise in PTSD. 

25Associate Professor Carroll gives the opinion:

Ms Beaston is already very avoidant of the world and feeling extremely stigmatised by her criminal charges.  Prison would be experienced as a very severe stressor, aggravating those issues.  It would also remove her from her employment role, a major protective factor against further decline in mental health.  Her history suggests that she may be rather vulnerable to bullying in prison.  One of the main manifestations of her PTSD is severely impaired stress tolerance, and she would hence struggle greatly with the above stressors.  She would, of course, be able to continue to access psychiatric medication within prison; however, the optimal treatment [he recommended] would be much less likely. 

26He concludes:

I therefore consider it more likely than not that her mental health would very significantly decline in prison.  She would be at risk of developing a more serious depressive condition, a major depressive disorder, worsening her PTSD and a possible risk of suicide.

27Dangerous driving causing death is a category 2 offence pursuant to s3 of the Sentencing Act. A term of imprisonment must be imposed unless one of the exceptions found at s5(2H) is established. The accused relies on two of the exceptions, namely s5(2H)(c)(ii) and that is the offender has impaired mental functioning that would result in her being subject to substantially and materially greater than ordinary burdens or risks of imprisonment, and s5(2H)(e) that there are substantial and compelling circumstances that are exceptional and rare that justify not imposing a term of imprisonment.

28In determining whether there are such circumstances, I must (a), regard general deterrence and denunciation as having greater importance than the other purposes set out in s5 of the Sentencing Act; (b), give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c), not have regard to the offender's previous good character other than the absence of previous convictions and findings of guilt or to an early guilty plea or to the prospects of rehabilitation or to parity of other sentences. 

29In the case of Lombardo[1] the Court of Appeal considered s52H and the meaning of substantial and compelling circumstances.  The court said at paragraph 62:

'More generally, the introduction of the exceptional and rare requirement made explicit this court's approach to the existing substantial and compelling circumstances requirement, namely that the circumstances must not only be powerful, but they must be wholly outside the run of the mill factors often or seen in offending of the relevant kind.'

[1] DPP v Lombardo [2022] VSCA 204

30The court went on to say that the enquiry under s52H(e) involves two steps:  first, I must assess whether there are substantial and compelling circumstances and, if so, whether those circumstances are exceptional and rare.  The court said that substantial and compelling means the circumstances are weighty and forceful or powerful, and that the phrase exceptional and rare is a composite phrase imposing a single test rather than two discrete tests.  The court suggested that exceptional and rare requires circumstances that are wholly outside the run of the mill factors typical of the relevant kind of offending. 

31The court in dealing with these provisions also said this:

Finally, we do not consider that the requirement to regard general deterrence and denunciation of the offender's conduct as more important than other sentencing purposes points to any different conclusion regarding substantial and compelling circumstances.  General deterrence and denunciation are always important in these cases which is why noncustodial sentences are exceptional, but the strength of those considerations again is influenced by the nature and gravity of the offending.  They are stronger in cases where the offending is more egregious.

32I turn now to the matters relied on you in support of the exceptions to the mandatory application of s5(2H) and I begin with consideration of your mental health and the relevant exception. On your behalf, Ms Roodenburg, your counsel, submitted that you have impaired mental functioning on the basis that you suffer a mental illness, namely PTSD and an adjustment disorder.

33Putting together the various reports, she submits the following conclusions may be drawn:  first, the material establishes you have experienced significant mental decline post-collision and referable to the collision; secondly, your symptoms remain unresolved despite the passage of time and despite treatment for over two years and being medicated for your anxiety and depression.

34She submitted the publicity surrounding your case was playing its part in your continued extremely poor mental health.  Thirdly, in accordance with Associate Professor Carroll's opinion, optimal treatment for you would require intensive trauma-focused treatment and treatment from a psychiatrist with expertise in PTSD.  Fourthly, on the unanimity of opinion contained in the reports, your mental health would significantly decline in custody. 

35And finally, you are a vulnerable individual who would be susceptible to bullying in custody which would increase your mental decline and the risk of self-harm.  Ms Roodenburg submitted that the expert opinion provided cogent evidence for the proposition that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment due to your mental health. 

36On s5(2H)(e) Ms Roodenburg relied on the combination of the following matters: the very low moral culpability and objective gravity of the offending; your mental health conditions; your need for optimal mental health treatment not available in custody; your youth and vulnerability; your lack of prior convictions; your strong family support; your pre-collision history of education and social supports; the delay in having this matter finalised; and your plea of guilty. I note I am precluded from considering the final matter, and that is your plea of guilty.

37On the topic of delay, it is now two years and nine months since the collision occurred.  I am told that you were not charged until 14 September 2022.  I was told this delay is attributable to the prosecution not being able to obtain an expert report for some time.  In any event, it is not attributable to you.

38On your mental health, Ms Roodenburg relied on limbs 2 to 6 of Verdins[2].  That is, she submitted, in addition to the Verdins limbs that look to the effect of sentence upon mental health, and that is 2, 5 and 6, both specific and general deterrence also should be moderated to some extent in your case, and that is limbs 3 and 4. 

[2] R v Verdins (2007) 16 VR 269

39I turn now to my own conclusions on whether you have demonstrated an exception to the imposition of a mandatory sentence of imprisonment.  At your sentence indication hearing I stated I was satisfied that your mental health conditions met the legislative test for subjecting you to substantially and materially greater the burdens of imprisonment than would ordinarily be the case.

40I am satisfied on the material presented that you have since the time of the collision experienced a precipitous decline in your mental health, and the material tendered establishes you are suffering from PTSD and an adjustment disorder as well as depression and anxiety which remain severe and have not resolved, notwithstanding the passage of time and treatment and medication. 

41I accept the opinion of Associate Professor Carroll that you need psychiatric care from someone with expertise in PTSD and that this is not available in prison.  I am satisfied on the basis of the material tendered you are suffering persistent and debilitating mental health conditions which would only further significantly decline in custody and I am therefore satisfied you meet the legislative test. 

42Turning to s5(2H)(e), I am satisfied that the factors rely upon meet the test of substantial of compelling in the sense that they are weighty and forceful. The following matters are of significance: your very poor mental health, which as has just been discussed, satisfied the conditions of the discrete ground and can be taken into account in this ground.

43I consider that you have demonstrated that you are suffering an extreme and intractable case of PTSD that transcends what is commonly seen in the aftermath of road trauma.  In conjunction with your lack of a criminal history, the low objective gravity of your conduct and your low moral culpability, your youth and the delay in finalising this matter, the legislative test is satisfied and I am satisfied the combination of circumstances that you rely upon are exceptional and rare.  Having found exceptional circumstances, I am now able to sentence you at large.

44As I have already indicated in your case, I propose to sentence you to a correction order.  I do in consideration of your youth, your plea of guilty and remorse, your lack of any prior criminal history and your hitherto good character generally.  And the application of Verdins limbs five and six.  Notwithstanding your very poor mental health, I do consider you are an appropriate vehicle for the application of both specific and general deterrence, and I reject the submission that Verdins limbs three and four are engaged in sentencing you.

45The sentence I impose must make it clear to you that in the future, you must always drive with proper care.  I take into account also the low level of objective gravity of your offending and your low moral culpability.  I further assess you as a low risk of reoffending and your prospects of rehabilitation as excellent.  General deterrence and denunciation remain important sentencing considerations; indeed they remain the predominant sentencing considerations.  The message must be said that drivers must take care when behind the wheel and this means being vigilant.

46As Ms Rawlings says in her victim impact statement:

I am left to raise three young children without their father, because of a split-second decision that extinguished a life that meant so much to the people who loved him, but Adrian's life was ended in the most preventable way, concentrate when in control of a vehicle, it's that simple.

47Correction orders are punitive as well as rehabilitative in nature, and I have concluded that the important sentencing objectives of general deterrence and denunciation can be achieved by the imposition of a correction order in your case.

48Taking into the account all the matters I am required to, under the Sentencing Act and matters personal to you, I intend to sentence you as follows. You need to stand now, Ms Beaston. On Charge 1, you are convicted and sentenced to a three-year community correction order, the conditions of which I will explain shortly. You can sit down. Pursuant to s18(4) of the Sentencing Act, you have served nil days of the sentence I have imposed. Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a term of imprisonment of two years and six months with a non-parole period of eighteen months.

49I propose to cancel your licence for eighteen months, pursuant to s87P(d) of the Sentencing Act, this is the minimum disqualification period, however I have concluded given you have no history of poor driving and given the necessity of a licence to function in a rural or regional community, there is simply nothing that can be achieved in cancelling your licence for any longer than I am required to.

50All right, Ms Beaston, now I need to explain to you what you will need to do under this correction order, if you agree to the order being made.  It is to last for three years.  The first thing you need to do is within two-days, and given that it is Friday, that will probably take you to Monday, you need to sign in at the Wodonga Corrections Centre.

51You will need to perform 250 hours of unpaid community work under the order.  There will be treatment and rehabilitation conditions that will include a driver awareness program.  You will be under the supervision of corrections for three-years.  That means that they have authority over your life in several important ways.

52You will need to notify them of any change of address and job.  If you want to leave Victoria, you have to let them know.  If you want to travel, you have to let them know.  You will need to obey all their lawful instructions.

53Fifty hours of any courses and programs you do can be credited as work hours. 

54HER HONOUR:  Let me just check that.  All right, Ms Beaston, you'll need to come back before me on 7 February 2025 at 9.30 am at the Melbourne County Court.

55And also I need to say, if you fail to comply with this order, you can be resentenced by me. 

56That means if you don't do your work hours, if you don't comply with corrections directions, and more significantly, if you offend in any way, and I mean in any way, not something as serious as this, but any offending, that is in breach of this order and you can be resentenced.  And that can involve imprisonment.  Do you understand?  All right, Ms Beaston, I will see you on 7 February 2025 at 9.30 am.  Thank you everyone for your assistance, we will stand down now until 10.30 am.  Thank you everyone.

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