Director of Public Prosecutions v Betts
[2016] VCC 1772
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00748
Indictment No. No: F12759915.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD PETER BETTS |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 18 October and 14 November 2016 |
| DATE OF SENTENCE: | 18 November 2016 |
| CASE MAY BE CITED AS: | DPP v Betts |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1772 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – drive in manner dangerous causing death – young offender
Legislation Cited: Crimes Act 1958 (Vic), s319(1); Sentencing Act 1991 (Vic)
Cases Cited: Ibbs v R (1987) 163 CLR 447; DPP v Borg [2016] VSCA 53; DPP v Oates (2007) 47 MVR 483; Boulton & Ors v R (2014) 46 VR 308; Rodi v R [2011] VSCA 48; Rooke v R [2011] VSCA 49; DPP v Neethling (2009) 22 VR 466; DPP v Leach [2003] VSCA 96
Sentence: Convicted and sentenced to a Community Correction Order of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K Doyle | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P W Murley | Clarke & Barwood |
HIS HONOUR:
1Mr Jarrod Betts is aged 20. He was 18 at the time of this offending. He was born on 2 May 1996.
2He appeared on trial before this Court on 17 October 2016 facing a culpable driving charge. On 18 October 2016, the matter was resolved between counsel.
3A new Indictment was filed, F12759915.1 and Mr Betts pleaded guilty to a breach of s319(1) of the Crimes Act 1958, that is to drive a car at a speed and in a manner which caused the death of Joel Salmon.
4The seriousness of this offence is demonstrated from the fact that Parliament has prescribed a maximum penalty of ten years’ gaol.
5The offence happened at Cororooke on the Corangamite Road at 7.40pm on 28 February 2015. It happened not far from the prisoner’s farm where he lives, and has lived, as I understand, all his life.
6The prisoner and the deceased, Joel, a close friend, were on their way to a function for the charity known as “Relay for Life”. Exhibit A was tendered, which is the prosecution summary. Mr Murley accepted the facts set out therein as the facts upon which I am to sentence Mr Betts.
7Mr Betts is a young offender under the Sentencing Act 1991 and therefore comes within the auspices of those provisions, and therefore the options, insofar as sentencing are concerned, is expanded for him, to include the option of a Youth Justice Centre order.
8As to the circumstances of the accident, the prisoner’s vehicle was roadworthy. It had, indeed, been purchased two days before, and as I understand what Mr Murley said, this was the second time that the prisoner was driving the car.
9It was a Ford Falcon sedan, six-cylinder automatic. There is no suggestion of any alcohol being involved in this accident. The road is a 100-kilometre zone. It is a single lane divided country road. It was sunset and the weather at the time was raining; there had been heavy rain.
10The accident happened near the intersection of Corangamite Road and Browns Road. The prisoner had been travelling at an agreed speed of 129 kilometres when he saw a vehicle approaching. He took his foot off the accelerator. Unfortunately, he also braked and the vehicle pulled to the left and it would appear then that Mr Betts oversteered.
11At paragraph 21 of the summary, the passenger in Ms Morrissy’s car, her boyfriend, Angus Lloyd – the car which ultimately collided with the passenger side of Mr Betts’s car – saw indeed the manoeuvre I have just referred to take place. That is, Mr Lloyd saw Mr Betts move his car to the left side of the road from closer to the centre where it had been travelling. Mr Lloyd then saw, what he described, as an over-correction. Such is also confirmed in the statement of Ms Morrissy.
12Unfortunately, as I said, because of the over-steering Ms Morrissy’s vehicle then hit the passenger side of the prisoner’s vehicle. Regrettably, as I have said, Joel, who was then 17, died at the scene. It must be said Ms Morrissy and her partner, Angus Lloyd, or boyfriend, were, in the circumstances, very lucky not to be severely injured or killed.
13In his record of interview, Mr Betts said that he was doing approximately 110 kilometres an hour when he looked down at the speedo. It seems to me, given the agreed speed, that could be right if he had looked at the speedo after he had taken his foot off the accelerator. However, the problem is, after he took his foot off the accelerator, as I said, he braked. He then, to use the words apparently that his passenger, Joel, said, got into what Joel described as “aquaplaning”.
14The rain, as described by Mr Betts in the record of interview, had been heavy. The road itself was not the best of roads and he said, he was focusing on the road as a consequence of those conditions.
15Analysing all of that evidence, and in particular the observations made by Ms Morrissy and Mr Lloyd, it is clear, like any accident, the cause of the death of Joel is multi-faceted. There is the speed that Mr Betts was travelling prior to the braking, there is the braking and the inexperience in braking in those conditions, which has led to what he described as aquaplaning, but what the police expert, Dr Mehegan, in her report described as the car getting into a yaw which is due to over-steering by the driver.
16It should be pointed out there are no priors whatsoever insofar as Mr Betts is concerned. Given all of those circumstances, it is necessary for me to classify the driving as required by the High Court in Ibbs v R (1987) 163 CLR 447, where if you have an offence which encompasses a multiplicity of circumstances, it is necessary for a Court, when prescribing a sentence, to ascribe its determination as to the culpability on what is known as the scale of heinousness.
17Taking account of all of these circumstances, in particular how the car got into a yaw, I find that the culpability of Mr Betts must be assessed as low to mid-range. I accept the submission of Mr Murley in that regard.
18It seemed to me that the prosecution do not necessarily argue against that assessment, however, given the totality of the circumstances and in particular the death of the passenger, the proposition put clearly and clarified this morning by the learned prosecutor was that the appropriate sentence was a period of confinement, given all of the factors in mitigation. Such confinement should be, the submission being of the prosecution, a confinement within a Youth Justice Centre pursuant to the provisions that I have referred to, and consistent with the report that was before the Court.
19To further clarify the prosecution position put this morning, given the plea of Mr Murley, it seemed to me clear that the proposition being put by Mr Murley was that Mr Betts should not be so confined. The only alternative therefore being a Community Correction order, and that report was called for and has now been tendered as an exhibit and that report is positive.
20In making the next comments, I mean no criticism of anyone, however it seems to me, that there was in reality no basis for this matter proceeding as a culpable trial. I cannot contemplate that there would have been a determination in that matter and good sense prevailed where the compromise was pleaded to.
21Given that we have, in driving offences, a stratum of offences, the next one in the strata is s319(1). In my view, the plea entered before this Court can only be described as a very valuable plea. In saying that, I am not in any way being disrespectful of the determination made by counsel. When a person is facing a culpable charge, these decisions are not easy. However, in my view, in the circumstances of this case, giving and taking account of the fact that he had no priors, his youth and the particular circumstances of how this accident happened, this plea can only be described as a very valuable plea.
22The other remarkable factor about this case is the evidence given by the family of Joel Salmon. On the day that the plea was entered, Raymond Salmon was present in Court. He is the uncle of the deceased. He was present in Court with his two daughters and granddaughters. I did not call upon him to give oral evidence but he expressed the support of the family for Mr Betts, and indeed, the support of Joel's father, Kevin Salmon, who could not be at Court that day.
23Exhibit B was tendered before the Court, which was the victim impact statement, and that statement was discussed. Subsequently, when the plea was conducted, Mr Kevin Salmon was in Court. I am not sure whether he is in Court again today. He is. It was made clear by Mr Murley, that Kevin Salmon was prepared to give evidence again in favour of Mr Betts.
24It is necessary for me to refer to the actual exhibit to appreciate, or to have appreciated in these sentencing remarks, the profound loss that Mr Salmon suffered by the death of his son.
25The mother of Joel had died, unfortunately, after a long battle with leukaemia when Joel was only ten years old. As Kevin Salmon says in his statement, he reared his son alone since the age of ten, something that brought him very close to his son. He was, to use his words, “My son but he was also my best buddy”.
26In describing his loss caused by this death, he said this:
“I miss all the daily happenings from getting him to school, his sport and his music. I miss all the conversations with him especially the close ones we regularly shared. He was interested in cars and everything else around our farm.
I miss him on trips we would take together to visit friends in Myrtleford on recent school holidays and family in Ballarat or a birthday, when I have travelled without Joel, my memories of him were strong. … .
Joel was close to his sisters Grace and Melinda and brother Glenn and he is missed by each of them. He and Glenn had worked together on rebuilding Joel’s car at Glenn’s property just up the road from ours. His sister Grace has attended counselling at her school to assist her to cope with her brother[’]s passing.”
27I want to stress the next paragraph:
“My Christian faith has been a gift at such a tragic time; it has provided me with the strength to cope with my grief and enabled me to continue as [a] parent, with my family, my work and the community.”
28He went on to say this:
“Two families have been badly affected by this incident[,] my own and that of Jarrod Betts who drove the vehicle. I hold no grudge or ill feeling towards Jarrod[,] in fact I have provided support and comfort to his family. I know how remorseful Jarrod is and he wished it was him not Joel that died in the accident. I remain concerned for Jarrod’s wellbeing as he deals with the responsibility and repercussions from his actions.”
29It is not for me, really, to comment on that victim impact statement, except to say that it is probably the most remarkable act of forgiveness that I have had before me in Court, especially in these type of cases. Unfortunately, we usually get greeted with the complete 360-degree response from the other family. To the extent that it shows true forgiveness within a community, I do find it remarkable.
30I make the point, however, and I have been involved in cases over a long period of sentencing, that where similar sentiments have been made to this Court, they are something that the Court takes into account in totality. If the driving is of a very serious degree of culpability, then there is no option for a court, despite the views of the family of the deceased.
31Here, as I said, I make the point that my assessment of the culpability in this matter of Mr Betts, is not to that degree.
32The principles relevant here have been rehearsed today by the Learned Prosecutor and were referred to by myself and both counsel during the plea, and during the discussions that took place before the plea was effected.
33As I said, by the maximum penalty imposed by Parliament, we are dealing with a most serious offence. Such is most dramatically demonstrated by the fact that the maximum penalty in this matter is a matter of ten years. Of course the consequences of this criminal offence has led to the death of Joel, to which I have referred to.
34Recently, the Court of Appeal assayed, I suppose is the correct word, these type of cases in DPP v Borg [2016] VSCA 53. At [47], there was reference to a statement of Neave JA in DPP v Oates (2007) 47 MVR 483, that a non-custodial sentence in matters of this type, given their seriousness and the fact that they involve death, could only be justified in cases where the “offender’s level of moral culpability is low”.
35The Court of Appeal went on in Borg to analyse, in a very helpful way generally, the principles set out in Boulton & Ors v R (2014) 46 VR 308, but also looked and compared Boulton to the particular circumstances in Borg. They came to a conclusion, even with the mitigatory matters in Borg, that the culpability of Borg was too high for any sentencing alternative, but for immediate imprisonment.
36During their plea, and the discussions leading up to the plea, the Court discussed with counsel Rodi v R [2011] VSCA 48, Rooke v R [2011] VSCA 49 and of course the case that the Learned Prosecutor has referred to this morning, DPP v Neethling (2009) 22 VR 466.
37I think, indeed, each of those cases may have been referred to initially by me to counsel when we were talking about this matter.
38In looking at the circumstances of both Rodi and Rooke, clearly, they were matters of high culpability. As such, sentences of immediate gaol were passed which are totally consistent with the principles set out by the Court of Appeal and referred to by the Learned Prosecutor this morning.
39In the matter of Neethling, of course, there is a substantial difference to be made, because at that time, for this offence, the maximum penalty was only five years. It should be pointed out, as was pointed out in Borg, and has been pointed out since Neethling on a number of occasions, it was the intent of Parliament, by increasing the maximum to ten years, to create a series of offences which would be appropriate to driving type offences and to recognise relative seriousness.
40In Neethling, a Youth Justice Centre Order was passed on appeal despite, in the circumstances, the culpability being very high. The circumstances in that case was a driver who went to pass a car by travelling over double lines when the visibility was poor and the road was wet. The circumstances in that case, unfortunately, led to one death and three particularly serious injuries to people. However, because of the particular mitigatory facts, a Youth Justice Centre Order was ordered, albeit not by the original Judge.
41Coming to the particular facts of this case, as was put by Mr Murley, here on the material before this Court, we have a person of fine character, a farmer by way of occupation from a farming family who comes before the Court with no priors at all. The plea could not have been made any earlier, nor could his acceptance of fault been made any earlier, made clearly at the scene from the statements made to an investigating officer.
42As I have said, this was, in my view, a very valuable plea. I refer again to the comments made about Jarrod by Joel’s father, which I have read out today, and I will not re-read those, but his comments about the genuineness of Mr Betts’ remorse, seem to me, to be confirmed totally in the two reports that were tendered by Mr Murley. The first being a report of Angie Overy, which we made Exhibit 2. Angie is a psychologist practising in Colac and the report, as I said, was tendered.
43Ms Overy noted that Jarrod had presented with pronounced psychological distress tormented by intense feelings of self-blame and profound grief. She concluded that Jarrod had impressed her as a genuine, honest young man deserving of all the leniency and special consideration that can be offered.
44In addition, I had placed before this Court, a report of consultant psychologist, Lester Walton. There is nothing of a mental issue with Mr Betts, however, it is clearly confirmed, while he has no history of mental disturbance, this accident has had a dramatic impact on him by way of, what is described by Mr Walton, as a grief reaction. Indeed, his grief reaction, according to the psychiatrist, Mr Walton, has reached diagnosable proportions, being now described as a Major Depressive Disorder with prominent post-traumatic features.
45It is clear that that comes about, not from any self-pity, but from the consequences of what he understands the reality of, is he has caused the death of his best friend.
46Consistent with both the statements of Joel’s father and Ms Overy, Lester Walton, consultant psychologist, said that Mr Betts impressed him as appropriately and quite markedly remorseful.
47Given the totality of those matters, I have no hesitation in accepting the submission of Mr Murley, that we have before this Court, a person of excellent character with high rehabilitative opportunities.
48In addition, I must say, I was taken with the report prepared by Ms Walsh, that is the community correction report, where she also spoke of Mr Betts. She is an experienced community correction officer, known to this Court. She said this, on page 2 of the report:
“The assessor (that is herself) would usually recommend the Road Trauma Awareness Program, however Mr Betts will not receive any benefit in doing this course as he lives with the trauma of the accident he caused every day. There are no criminogenic factors that impacted on Mr Betts[’] driving besides his inexperience with driving and the unintentional speed at which he was travelling. Mr Betts understands he should have not been speeding.”
49I do not take those comments into account in any way in my assessment of culpability. I have already made that, but take them into account as to the issue of remorse.
50As I say, the totality of all the matters of which this Court has to assess, not only the objective culpability involved, but the subjective factors relevant to Mr Betts, are such as are prescribed by Ibbs as the requirements for an appropriate sentencing assessment.
51It was, indeed, in taking account of all those matters, that the prosecutor confirmed this morning, that it was the submission of the prosecution that, not only was a Youth Justice Centre order appropriate, but that a Community Correction order of any form was inappropriate. Indeed, there can, unfortunately, be no combination. There is no possibility – it seems to me it is a failure – but there is no possibility to combine a Community Correction order with a Youth Justice Centre order.
52The final factor that must always be considered by a court is the issue of mercy. Eames JA in DPP v Leach [2003] VSCA 96, in talking about the role of the Court of Appeal in appeals, said this:
“It … should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.”
53As I earlier stated, in my view, in referring to the statements made by Neave J in Borg at [47]:
“… a non-custodial sentence could only be justified in a case [of this type] where ‘the offender's level of moral culpability is low’.”
54I have concluded, taking into account in totality all of the matters that I have referred to, in particular the valuable plea and the particular circumstances of character and remorse, and the charitable attitude demonstrated by Joel’s father, that this is a case for a merciful determination. I would therefore reject the proposition of the Learned Prosecutor that the only alternative in this case is one of a Youth Justice Centre order.
55I have determined that, given all the circumstances, that appropriate justice and parsimony can be achieved in this case, as is required by the principles set out in the Sentencing Act 1991, by the passing of a sentence which does not involve immediate incarceration.
56I intend, subject to Mr Murley indicating to me his client consents, to impose a Community Correction order for a period of three years that will involve 200 hours’ community work. It will also involve the conditions set out by Ms Walsh in her report.
57I am required under s89 of the Sentencing Act 1991 to take mandatory steps in regard to Mr Betts’ licence. As I understand the position, s89(2)(a) requires me to cancel his licence and disqualify him for a period of 18 months. I think that is right, is it not, Mr Prosecutor?
58MR DOYLE: Yes, it is, Your Honour.
59HIS HONOUR: A court must not specify a period of disqualification, that is, less than 18 months, so that is the minimum period as prescribed by Parliament for a disqualification – cancellation of a licence and disqualification from obtaining a licence.
60Mr Murley, do you need to seek specific instructions? What is the position?
61MR MURLEY: No, Your Honour, he has already seen the report and accepts it totally.
62HIS HONOUR: Yes. Can you stand please, Mr Betts?
63In regard to this matter, you will be convicted of the charge to which you have pleaded. You will be sentenced to a Community Correction Order for a period of three (3) years.
64I order that, as conditions of that Order, that you perform 200 hours’ community work, and undergo the conditions as recommended, being the treatment and rehabilitation by way of alcohol, as referred to in s48D(3)(b), and also the treatment and rehabilitation in regard to your current depression, s48D(3)(e).
65You will also be subject to supervision and I am sure, although I have to say this to you, that it would obviously not be in your interests to come back in that three years having breached the conditions of the Community Correction Order, but given the information and material I have about you in this Court, I am confident that we will not see you again.
66Mr Prosecutor, is there anything else that I have to attend to?
67MR DOYLE: No, Your Honour.
68HIS HONOUR: Yes, thank you. Mr Murley?
69MR MURLEY: No, Your Honour.
70HIS HONOUR: Yes, I will stand down while we get ready.
‑ ‑ ‑
9
0