Director of Public Prosecutions v Bennett

[2017] VCC 214

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02098

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON JOHN BENNETT

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2017
DATE OF SENTENCE:	9 March 2017
CASE MAY BE CITED AS:	DPP v Bennett
MEDIUM NEUTRAL CITATION:	[2017] VCC 214

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Mr I. Hill QC with Mr J. Marquis	Galbally & O’Bryan

HIS HONOUR:

1On 3 March 2017 you, Simon John Bennett, pleaded guilty to one charge of dangerous driving causing death.  The maximum penalty for this offence is ten year's imprisonment.  Tendered as Exhibit A and read aloud in court was the prosecution opening. 

2In summary, you were travelling east on Whitehorse Road, Mitcham, shortly after midday on Tuesday 10 May 2016 driving your late model Volkswagen sedan.  You were approaching the intersection of Whitehorse Road and Station Street, Mitcham.  I am satisfied that your intention was to turn right into Mitcham Road, which is a short distance beyond the intersection of Whitehorse Road and Station Street.  Both intersections are controlled by traffic lights.

3The traffic light at Station Street was showing red for your vehicle at the time and there were at least two stationary vehicles at those traffic lights in the left hand lane.  You were travelling in the middle of three eastbound lanes. 

4Your victim, Marina Jeogarty Briggs was crossing at the pedestrian lights which are located at the western boundary of the intersection.  I am satisfied that the applicable traffic light was showing red for your vehicle and had been red for a period of some 8.5 seconds.  It had been amber for a further 4.5 seconds before turning red. 

5Your offending did not occur as a result of momentary inadvertence or inattention in that you failed not only to observe the amber and red traffic lights for a significant time, but you apparently ignored the stationary vehicles at the intersection in the left lane.  Tragically for Mrs Briggs, as she walked across the intersection your vehicle struck her, fatally injuring her.  She died at the scene.

6There is no indication in your case of any excessive speed, lack of control or any mechanical issue with the vehicle being driven by you.  I also accept, as put by Mr Ian Hill QC who appeared with Mr Maquis on your behalf, that you were relatively unfamiliar with the area and needed to turn right from Whitehorse Road into Mitcham Road to visit a client.  I further accept that your reaction at the scene on being informed of Ms Brigg's death was consistent with your appreciation of the tragic consequences of your driving on that day and indicative of general and sincere remorse for your offending.

7You have no prior criminal history and no prior driving offences alleged against you.  You were 29 years of age at the date of the offending and you are now
30 years of age. 

8I have taken into account the character evidence called on your behalf from
Mr Rodney Eade, who has known you and your family for effectively all of your life.  In particular Mr Eade gave evidence that he had spoken to you within a matter of weeks following this offending and his evidence is consistent with the submission advanced on your behalf of your sincere and genuine remorse for the tragic consequences of your offending.

9Evidence was also called from your immediate supervisor, Mr Zeb Woodhatch.  I accept his evidence that you have expressed compassion for the devastation that you have caused.  I also accept his evidence as to your general driving behaviour, noting that he has driven with you on a number of occasions prior to the offending.  He regards you as a careful driver.  His evidence confirmed that following this tragic event he is aware of you only driving on perhaps two further occasions.

10In addition to the two witnesses called on your behalf I was provided with a folder of defence materials[1] containing a number of further character references, two medical reports and a psychological assessment prepared by Mr Patrick Newton and dated 24 February 2017.

[1]Exhibit 1

11The substance of Mr Newton's report reinforces the comments I have made earlier in relation to your remorse at this offending and I accept that you have been diagnosed appropriately with an Adjustment Disorder with mixed anxiety and depressed mood, which is said to be severe.  Mr Newton further expresses the view that a custodial sentence could place you at significant risk of a deterioration of your mental state.  He further states that he would anticipate your experience of adjusting to the custodial context would be likely to be particularly difficult.

12The defence material also included medical reports relating to hip surgery which had been performed on you in 2014.  Whilst this material was confirmatory of matters advanced on your behalf during the plea, it was not otherwise of great significance to the sentencing disposition.

13I have read the remaining 17 character references contained in Exhibit 1.  These are variously from family members, friends and business associates and each refers to knowledge of the offending, which I regard as important in assessing character evidence tendered in a matter such as this.

14Each of the character references, excepting the one from your girlfriend,
Ms Barling-Mills, bears a date in either January or February 2017.  There is little doubt, on the basis of what is said by each of the authors of these references, that I can confidently conclude that you have a very low prospect of re-offending, and that you have been greatly affected personally by the tragic loss of Mrs Briggs' life as a result of your dangerous driving.

15I note reference to your earlier experience of loss when your mother succumbed to cancer in 2007.

16Victim impact statements were read to the court by the victim's husband, David Briggs, and her sister-in-law, Sandy Archer.  Further victim impact statements were read to the court on behalf of her two stepdaughters, Shannon Elizabeth Briggs and Keely Anne Briggs and her mother-in-law Judith Briggs.  Each of these reinforce the devastation and long-term harm to these victims and no doubt the broader community caused by the tragic loss of Mrs Briggs' life as a result of your offending.

17The governing principles relating to sentencing are contained within s.5(1) of the Sentencing Act 1991. I was referred to numerous authorities both from the appellate courts and from judges of this court in relation to the application of those principles to the present case.

18Mr Kissane QC, who appeared with Ms Clancy on behalf of the Director of Public Prosecutions, referred in particular to the passages of a case of Stephens v R[2]where the court stated:

"We have concluded that, particularly in light of the course followed in Harrison v R[3] we should state for the benefit of sentencing courts in future cases that there is a need for a gradual increase in the sentences to be imposed in cases for dangerous driving causing death which fall within or above the mid category of seriousness".[4] 

[2][2016] VSCA 121

[3][2015] VSCA 349

[4]Stephens v R at [33]

19Mr Hill QC urged me to impose a short custodial sentence combined with a community corrections order. Mr Kissane QC submitted that the imposition of a head sentence combined with a minimum period of imprisonment would be a more appropriate disposition. There was disagreement between counsel as to the appropriate classification of your offending as to whether it was properly a sentence that could be said to be in the mid-range category of seriousness or somewhere towards the lower end of that range. This has relevance for the purposes of s.5(2)(b) of the Sentencing Act.

20As I have stated, this is not a case where offending occurred in circumstance of a momentary loss of concentration by you.  It is however untainted by the all too familiar characteristics of excessive speed, the presence of alcohol or drugs or a particular recklessness which would place it in the higher range of seriousness.

21The circumstance of the offending do, nevertheless, establish for a period of at least 8.5 seconds and probably longer, you had ignored or not observed a red light and taken no heed of stationary cars in the left lane of Whitehorse Road as you approached the intersection.  I do not regard the offence as being in the lower range of seriousness and it is, in my view, an offence which could fairly be described as “at the lower end of the mid-range of seriousness”. 

22Returning then to the sentencing guidelines, I am satisfied that the circumstance of the offending involving the tragic death of Mrs Briggs demands significant weight to be given to the principles of general deterrence and denunciation of the type of conduct in which you engaged.  Specific deterrence in your case plays a much lesser role in view of the findings that I have made in relation to the degree of remorse shown by you and the unlikelihood of a similar offence endangering members of the community as a result of any future actions by you.

23I am also satisfied on the basis of the matters put by Mr Hill QC, relying upon the psychological report, that this is a case where there is a serious risk of imprisonment having a significant adverse effect on your mental health and this will, therefore, be a factor tending to mitigate the degree of punishment imposed.  In particular I accept the submissions advanced by Mr Hill QC that you, in a custodial context, would find it extremely difficult to continue to receive the trauma focused treatment which is central to your needs. 

24I have considered the suitability of combining a short period of incarceration with a community corrections order.  Bearing in mind the nature and gravity of this offence, the maximum penalty prescribed and considering the principles referred to in Boulton's case,[5] I do not propose to order a combination sentence, even though I regard your culpability at the lower end of the mid-range. 

[5][2014] VSCA 342

[6][2007] VSCA 102

I consider the circumstance of your offending warrant an immediate custodial sentence with a minimum period fixed at a relatively low level to reflect your positive steps already taken towards rehabilitation and the Verdins[6] issue referred to previously. 

25Would you stand up now please, Mr Bennett.  I sentence you as follows. 

26You will be convicted and sentenced to a term of imprisonment for a period of three years as a head sentence with a minimum term of 18 months imprisonment before being eligible for parole.

27Further, I order that all licences and permits will be cancelled for a period of three years effective from today and you will be disqualified from obtaining any further driver's licence in Victoria for that period.

28I further order that pursuant to s.464ZF of the Crimes Act 1958 you undergo the taking of an intimate sample namely saliva, such sample to be placed on the database. I am required to inform you that a member of the police may use reasonable force to obtain such a sample.

29I further state, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty plea I would have imposed a head sentence of four years and six months' imprisonment with a non-parole period of three years.

30Would you please go with the custodial officer now please, Mr Bennett.  Any further matters?

31MS CLANCY:  No, Your Honour.

32HIS HONOUR:  Adjourn the court.

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