Director of Public Prosecutions v Bell

[2018] VCC 1094

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WANGARATTA
CRIMINAL JURISDICTION

CR 18-00579

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON BELL

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Wangaratta
DATE OF HEARING:	2 July 2018
DATE OF SENTENCE:	17 July 2018
CASE MAY BE CITED AS:	DPP v BELL
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – dangerous driving causing death
Legislation Cited: Sentencing Act 1991, Crimes Act 1958
Cases Cited: R v Jurisic (1998) 45 NSWLR 209; R v Whyte [2002] 55 NSWLR 252 ; DPP v Janson [2011] VSCA 19; DPP v Oates [2007] VSCA 59; DPP v Neethling [2009] 22 VR 466; DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063; R v Borg [2016] VSCA 53; Hutchinson v R [2015] VSCA 115
Sentence: Convicted and sentenced to a term of nine months’ imprisonment and a community corrections order of two years’ duration.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms D. Price	Sally Wilson Legal

HIS HONOUR:

1Aaron Bell is before the Court having pleaded guilty to one charge in indictment number H12684776. Mr Bell was born on 12 March 1990. He was 26 at the time of this commission of the crime, he is now 28. Section 319(1) of the Crimes Act is a charge of dangerous driving causing death.  The victim in this case, as I have indicated was Roberta Brown.  The maximum penalty prescribed by Parliament for this offence is ten years imprisonment.  That in itself indicates the seriousness of such crime, as I will mention later.  When that provision was first brought in as a suite of offences designed to try to combat offences on the road, the maximum was five years.  The Parliament determined subsequently that the maximum penalty be increased to ten years.

2The circumstances in regard to this crime occurred on 16 January 2017, at the intersection, that we have just been speaking about, of Riley Street and Warby Street in Wangaratta.  The van driven by Mr Bell was doing a right hand turn to travel in a north easterly direction and had a dedicated right hand turn lane.  Mrs Brown was crossing at the pedestrian crossing, she was aged 53 at the time and, as just indicated by the prosecutor, had instigated the green light which allowed for a pedestrian to cross.

3Riley Street is a major road which travels west to east, approximately anyway, in the town of Wangaratta.  At the time, Mr Bell was driving a Iveco van for Wang Hydraulics, by whom he was employed.  Exhibit C tendered were the photos of this scene.  Exhibit A was an aerial plan and Exhibit D was a CCTV footage.  I have looked at the CCTV footage on a number of occasions.  It unfortunately does not identify Mr Bell's van till almost the time that it impacted with Ms Brown, but it does show the impact.  It is fortunate, that there is any CCTV footage, but it is somewhat limited. 

4Exhibit A was tendered as the prosecution opening, and was accepted by
Ms Price as detailing the circumstances upon which I am to sentence Mr Bell. 

5The weather that morning was fine.  It was daylight, there were no obstructions.  Witnesses observed the van to be moving at what is called a turning pace.  There was no braking of the vehicle prior to its hitting Mrs Brown.  Detective Senior Constable Hay, who is a reconstructionist employed by the forensics section of Victoria Police and a civil engineer with much experience in the field, made an analysis of this accident, and was of the opinion that Mr Bell had ample response time, had he observed Mrs Roberts.

6It is clear that Mr Bell knew the intersection well.  The fact is, he did not see Mrs Roberts or her dog on making that right hand turn, or at any time.  As he says in his statement, once he did see her, he jumped on everything, but of course it was too late.  As was just indicated, when Mr Bell gets the green light, the pedestrian light which Mrs Brown got, operates some 1.5 seconds later.  The van travelled approximately 26.7 metres before hitting Mrs Brown.  It then took some 14.7 metres to come to a stop.  Mrs Brown died from her injuries, it would appear almost immediately.  Having seen the CCTV, it is clear that Mr Bell was immediately very upset at what he had done.  He seems to have immediately gone into a state of shock and drops to his knees as he comes back and sees the severity of the scene that he had created.

7Mr Bell comes before the Court with no priors whatsoever for any criminal or driving offences. Pursuant to s.89(1) of the Sentencing Act, his car licence must, as a result of this conviction, be cancelled for eighteen months.  There is an order as to a forensic sample sought by the Crown under s.464(2)(f), however, I find there is no possibility of Mr Bell being involved in any further criminality and no risk of recidivism. I do not think it appropriate to make such an order.

8The victim impact statements filed were all under Exhibit E.  The first was
Mrs Brown's husband, Mr Peter Brown, dated 20 June 2018.  Mr Brown spoke to that statement.  Secondly, Mrs Brown's daughter Roxanne, dated 22 June 2018, who also spoke to her statement in court and further, Mikayla Brown, dated 28 June 2018, she again spoke. There were further victim impact statements from Lockie Guss, son in law and a friend, Ms Barnett.

9Given Mrs Brown's age, these statements were heart rendering.  Death unfortunately is an element of this offence, every time it comes before the Court.  Having had those raw emotions exposed at Court, from what was publicly read and what I have subsequently read, I re-emphasise the fact that the criminal justice system cannot assuage the hurt felt by grieving relatives, even by the imposition of a very substantial sentence of imprisonment.

10In reality, it is difficult to arrest the trauma of losing such a loved mother and wife, or giving a sense of closure to broken hearted parents and children.  I think that is very important for people to understand.  However, the rational of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders, if that is possible.  The sentencing function enables the courts, on behalf of the community, to state with crystal clarity, that conduct of this particular kind will not be tolerated.  As I said, nothing the Court, or indeed Mr Bell can do, will overcome such loss, especially for Mr Brown.  As I say, I have read each of the statements a number of times since they were read out in Court.

11The Crown noted the early plea of Mr Bell, which was made at the time of the third committal mention on 15 March 2018.  In the plea, conducted by Ms Price, Exhibit 1 was tendered, which was her submission and the letter of apology of Mr Bell was also tendered.  It is accepted that such has been, albeit undated, sent to the Crown and it is understandable in the circumstances, I make no criticism, the family have chosen not to receive it.  However, the fact is Mr Bell drafted it and it was sent and it details his remorse in regard to the crime.

12Exhibits 3A and B were psychological reports of a psychologist Crutchfield.  It is clear from each of those reports the confirmation of significant guilt felt by
Mr Bell and remorse and genuineness of that remorse expressed in his letter.  He has suffered, consequent to this accident, post traumatic trauma which of course has been highlighted by this court case, the contemplation of such court case and the contemplation of a period of imprisonment.

13In the updated report, Mr Bell has undergone monthly counselling.  His remorse has continued and indeed, his post traumatic condition has exacerbated due to the fact that his life is on hold until the sentence has been pronounced.  Both at the time of the plea and indeed since these events, I note the strong family support that Mr Bell has.

14In Exhibit 4 are the statements and testimonials of support.  Brendan Smith, a family friend, his wife Christeen.  Another friend, Jane Morson and his employer Mr Papworth.  Mr Papworth's testimony is of utmost importance.  It is a valuable letter from an employer.  It shows that Mr Bell is a person who is responsible beyond his years.  He is a person in his employment who has shown evidence of high responsibility, who has expressed to Mr Papworth his ongoing remorse. As an indication of that support, Mr Papworth has indicated that irrespective of the decision this Court makes, he will always have a job there.  Also there was a testimony from his father in law, Mr Hartley, and his brother Nathan which were of significance. 

15I note by way of background put to me by Ms Price, the manner in which
Mr Bell overcame adversity in his young life.  I have no doubt that he can properly be described as a man of high character, with a good reputation, who comes before this Court with no prior offences.  I further accept that his remorse is genuine, that he has suffered genuine trauma from the fact of him realising that by his actions, he killed Mrs Brown and has caused the family trauma that we have heard about in this Court.

16Insofar as all those subjective factors relied upon by Ms Price, the prosecution did not really dispute them.  I have had, I might say, considerable disquiet about this sentence.  One cannot lose sight of the fact that it was only in 2008 that the maximum penalty for this offence was increased from five years to ten years by Parliament.  Further, one has to remember the comments made by the Court of Appeal in Stephens, which is the case handed to me by the learned prosecutor, as to the adequacy of the current sentencing practice, as it was then, [37] to [41].

17Clearly offences of this type require consideration, apart from the factors that I have referred to which are personal to Mr Bell, of denunciation, general deterrence, specific deterrence and of course punishment.  I also note in Neethling, which I will refer to in due course, at [29], albeit that the offence then only had a maximum penalty of five years, that the Court of Appeal, said:

"A non-custodial sentence for this offence should be seen as exceptional. That does not mean that there has to be necessarily exceptional circumstances as we understand them in the law. However, the proposition is clear. The principle of parsimony is obviously very important here, as are the other relevant sentencing factors detailed in s.5(2) of the Sentencing Act 1991".

18I am not immune, nor could one be, to appreciating the concerns that Mr Bell has as to the effect of a period of imprisonment upon his wife, his job and his family.  However, while I have sympathy for such concerns, and such obviously clearly in law does not amount to exceptional circumstances, looking at this crime, the fundamental reason for Mrs Brown's death is the failure of Mr Bell to keep a proper lookout.  As I said during the plea to Ms Price, when one is driving a car, that is a fundamental obligation.  I accept that this death came about by way of momentary inattention by Mr Bell.  However, such involves a serious breach of his obligation as a driver, which placed the public at risk.

19While it is true that his culpability is not aggravated in the ways enumerated in Jurisic (1998) 45 NSWLR 209, or R v Whyte [2002] 55 NSWLR 252, and as enumerated by the Court of Appeal in Janson [2011] VSCA 19, [48]. The fact is as stated by the then Justice of Appeal Nettle, and confirmed in Oates [2007] VSCA 59 and Neethling [2009] 22 VR 466, general deterrence is an important consideration in sentencing in all forms for this crime, including lower level forms of the offence, [30] and [35].

20The case of Janson is actually quite analogous.  In that case, there had been, what the trial Judge described as a lower end of dangerous driving offence, owing to what she described as a short period of inattention of about ten seconds, when the driver of a semi-trailer failed to see the red lights and approaching intersection.  The result of that was that he went through the intersection and killed a person.  The Court of Appeal found in such circumstances that it was not open to the Judge to so conclude, that culpability was at the lower end.  They further found that any reasonable driver in such circumstances would be bound to realise that to drive a vehicle in such a manner, involved a serious breach of proper management or control of the vehicle, which created a considerable risk to members of the public.  Hence in the circumstances, at [19], Justice Nettle described the lapse as a remarkable one.

21As I said in the plea, coming back to our case, here was a potentially serious breach of Mr Bell's obligation to keep a proper lookout.  The victim was at the pedestrian crossing for twenty-one seconds.  The van, while clearly not a semi-trailer as in Janson, was indeed a large van, with a bullbar.  I have gone back and closely analysed Mr Hay's evidence, at p.107 to 108 of the depositions.  Mr Hay, the reconstructionist and the engineer who analysed the CCTV, which I have earlier spoken about.

22It is clear that, as is the fact, that even if Mr Bell had not seen Mrs Brown while she was stationary, on the analysis provided, he had an additional 3.8 seconds to observe her after a 4WD and a trailer drove past her.  That is, prior to the impact occurring.  One of course cannot be precise because of the limitations of the CCTV, as to how long Mr Bell’s van had been at the intersection before turning.  As I said, the CCTV does not show the van being driven by Mr Bell until 1.28 seconds before the collision.

23As I have said, there appears to be no explanation as to why Mr Bell did not see Mrs Brown waiting at the pedestrian crossing.  Hence while I accept the dangerousness here was momentary inattention, it must be classified as a momentary inattention for a period of somewhere between 3.8 seconds and 21 seconds.  In those circumstances, given the state of the weather, and visibility, I do not accept that the moral culpability is as low as was submitted by Ms Price, or that the objective gravity of the offence is at the lower end.  I find, both as to the objective gravity and culpability that the proper manner in which to assess this offending is at mid-range.   

24I apologise for the technicality of this, however it having been put to me by Ms Price that I should assess both the gravity and the moral culpability at a low level, it was necessary for me to consider that proposition.  The law of course has moved on somewhat, however, there seems to be a continuation of the analysis of these cases on the basis of where they fit on the scale of culpability.  Clearly given Dalgliesh (2017) ALJR 91 1063, [49], and indeed criticism recently of the Court of Appeal as to putting criminality at a particular range, as the High Court says, "what this Court must do, is deliver individualised justice to Mr Bell and sentence him for the particular circumstances of this case by the operation of relevant legal principles, not adherence to a range of sentences".

25Given my finding as to objective gravity and culpability, such does not necessarily mean that a community correction order is inapplicable, given the subjective factors in your favour Mr Bell, which I have enumerated and were fully detailed by your counsel in Exhibit 1 and orally.  In particular, I take into account your plea.  Your plea serves justice.  It was made at an early opportunity.  It demonstrates remorse and is utilitarian in the sense that in particular, Mrs Brown’s family were not put through the trauma of enduring a trial.

26I accept, as I have already said, the genuine remorse expressed by you.  I accept that you have no priors.  I accept that you have an excellent character and reputation as described by your referees, and that you have an excellent work record.  I note the family support, in particular of your wife Christeen.  I also note the matter relied upon by Ms Price, that the Director has submitted to the Court that it is open within the range of sentence, for a community correction order to be passed.  But as submitted by Mr Grant, ultimately whether a community corrections order should be passed, in part or whole, was to be a decision for me.

27Your counsel submitted that the principles of just punishment, general and specific deterrence can be satisfied by the passing of a community corrections order.  While not in any way committing the Court in this regard, I consented to a community corrections order report being obtained and as I have indicated this morning, Exhibit F has been tendered, for which I thank Mr Parkinson, being a report of 17 July 2018, which classifies Mr Bell as suitable for a community corrections order.  That was tendered as Exhibit F, and also tendered was the further submission of Ms Price, Exhibit 5.

28The consideration of this sentence has been exquisite.  I take into account Mr Bell, all of what your counsel has put to me.  However, I have, unfortunately for you, decided that the maximum penalty prescribed and your dangerous driving which caused the death of Mrs Brown, are such that I do not consider that a community corrections order alone would be an appropriate sentence to pass upon you.

29Despite the strong subjective factors in your favour, I consider that the objective gravity of this crime is such that a community corrections order standing alone would not be an appropriate reflection of the serious offending here, despite your moral culpability not being aggravated by the usual factors as often seen in these cases.  In this regard, I have closely considered the case put to me of R v Borg [2016] VSCA 53, in particular [104] to [108] thereof and of course, ss.5(2), (3) and in particular, ss.5(4), (4B) and (4C) of the Sentencing Act.

30As was said by Priest JA in Hutchison v R [2015] VSCA 115:

"There will be cases, indeed many cases, where having regard to the seriousness of the offending, a community corrections order will be insufficiently punitive, to satisfy the need to punish the offender in a manner which in all the circumstances, is just".

31Despite my finding, I consider however that it is appropriate in all the circumstances to hand down a sentence which is as merciful as can be.  Mr Bell if you would stand up please.  You will be convicted of this offence.  You will be subjected to a combined sentence of a period of gaol and a community corrections order.  You will be gaoled for a period of nine months, with a community corrections order of two years to commence thereafter.  The only condition that I impose in regard to the community corrections order is one of supervision.

32To make a determination under s.6AAA which I am required by Parliament is difficult.  Parliament requires me to tell you what sentence I would have passed had you not pleaded guilty,  taking into account only the factor of you pleading guilty.  There are, as I think have demonstrated, multiple factors that have been considered in your sentence.  However, doing as best I can, I tell you that had you not pleaded guilty, I would have sentenced you to an aggregate period of three and a half years.

33There is no pre-sentence detention. I do not make any order under s.464ZF. Under s.89(1) of the Sentencing Act, your licence will be cancelled for a period of 18 months.  As I said Mr Bell, it is my unfortunate duty to sentence you to a period of imprisonment of nine months.  When you finish that period of imprisonment, you will then have to serve a community corrections order, in the community, of two years.  Ms Price or Mr Prosecutor, any issues that I need to raise or that I need to deal with?

34MR GRANT:  No, Your Honour.

35MS PRICE:  Just in terms of custody management issues, first time in custody with post-traumatic stress disorder.  So there's issues of vulnerability.

36HIS HONOUR:  Yes, I will have my associate note both of those on the order and make sure that those matters are handed to the gaoler and that the matters are dealt with when Mr Bell arrives in prison.  Yes, Mr Bell may be taken away.  I am sorry, I apologise Mr Bell to put you through this, but you have got to sign the community corrections order.

37MS PRICE:  If my instructor could step back and assist him in that process ‑ ‑ ‑

38HIS HONOUR:  Yes.

39MS PRICE:  ‑ ‑ ‑ of signing the order?

40HIS HONOUR:  Ms Price, I didn't seek formal consent given that your client had indicated in the report that he would consent to such an order.

41MS PRICE:  He would.

42HIS HONOUR:  Yes.

43MS PRICE:  Yes.  If I could just take this to the dock?

44HIS HONOUR:  Yes.  Yes, Mr Bell it gives the Court no pleasure to sentence a person of your character to gaol, however, as I think I have tried to explain, the circumstances, give the Court no option in regard to passing an appropriate sentence, given the death in this matter of Mrs Brown.  I am sure, given your character, that you will have the ability to live the life that you have lived to date, before this tragedy for everyone, once you have completed your sentence.  Yes, the prisoner can be taken away.  Yes, I will stand down.

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