Director of Public Prosecutions v Blake

[2021] VCC 1654

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01819

DIRECTOR OF PUBLIC PROSECUTIONS

v

WARREN BLAKE

---

JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2021
CASE MAY BE CITED AS:	DPP v Blake
MEDIUM NEUTRAL CITATION:	[2021] VCC 1654

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr A. Bayliss

HIS HONOUR:

1Warren Blake, you are to be sentenced for one charge of dangerous driving causing death.  The maximum sentence is 10 years' imprisonment. 

2You pleaded guilty before me on 1 July.  You were interviewed by police on 25 March 2019, only a few hours after the collision which caused the death of Andrew Rodger.  I accept that you were fundamentally attempting a truthful explanation of what had happened.  The collision had occurred suddenly, in highly traumatic circumstances.  You admitted in the interview that you had said immediately after to a person who attended, not a police officer, that you had swerved because of kangaroos on the road and that this was not true.  When dash camera footage was put to you, you admitted and I quote from the Crown opening and interview, “When the dash camera footage was put to him he admitted that he had driven onto the wrong side of the road and then steered to the left to try and avoid a collision and that that caused the trailer to jack-knife and tip over”.

3There was a committal hearing in December 2020.  In this court the matter resolved to a plea in February 2021.

4You receive the benefit of your plea of guilty and what I see as a high level of cooperation in the proceeding both from an early time.  Your plea of guilty has facilitated the interests of justice, accepted responsibility and expresses remorse.  I find that you are genuinely remorseful.  The utilitarian benefit of your plea, that is to the interests of justice, is the greater given the impact of the COVID-19 pandemic on the criminal justice system.

5At your plea hearings, which ran on 1 and 20 July and 21 October, Ms Parkes for the Crown tendered a written prosecution opening,  the dash camera footage taken from your vehicle, a large number of photographs of the collision scene including aerial photographs of that, police video footage of the scene and the victim impact statement of Andrew Rodger's wife, Meshel Fanua.

6Mr Bayliss for you, tendered the forensic psychological report of Bernard Healey dated 12 May 2021,  bank statements relevant to your financial circumstances, medical and like material related to the autistic disorder of your young son, a number of letters of character and work reference, medical materials related to the health of your wife, letters by a treating psychiatrist Dr Ravi Srinivasaraju dated 25 June 2021 and by psychologist, Maria Jane Lee dated 11 June 2021, and your own letter to the court.

7On 21 or 22 October, Mr Bayliss tendered further material, the report of your son's occupational therapist Victoria Harrison dated 8 October 2021, the report of paediatrician Dr Elizabeth Green dated 16 September 2021, that of your wife's treating psychologist Dr Lydia Szmetzka dated 5 August 2021, and the letter of family friend, Danielle Cooper, who is also the parent of an autistic child.

8Both counsel have provided written submissions on sentence Mr Bayliss provided further written submissions for the part-heard 22 October hearing.

9I have been referred to a number of appellant court authorities and comparative sentencing cases. 

10The main reason for adjournment of the plea hearing was to enable Mr Bayliss to provide further evidence of hardship to your family arising out of your son's autism condition. 

11The circumstances of your offence are comprehensively described in the tendered Crown opening,  which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by my assessment of exhibits tendered, particularly those visual exhibits I have identified.

12At the time you were aged 50 years and Andrew Rodger, 55 years.  Both of you lived with your families in Bacchus Marsh.  Both of you worked for a living as heavy vehicle truck drivers.  You did not know each other.  You had worked for your employer for a total of 28 years.  You both drove large Kenworth tippers, towing trailers.  Both vehicles were heavily loaded with pebbles.

13The collision occurred at about 6.30 am on 25 March 2019 on the Geelong-Bacchus Marsh road in a rural area near the town of Parwan.  The road runs generally straight in a north-south direction.  There is one lane for traffic each way.  You were travelling south, Andrew Rodger north.  Close to the collision point the road curved or bent, left for you, marked by double white lines.  At the time it was dark with no lighting but for vehicle headlights.  The traffic was busy.

14My viewing of the tendered dash camera footage has left a strong impression of a tight, quite heavily trafficked roadway being travelled in difficult, dark conditions. 

15You were travelling at about 98 kilometres an hour, within the 100 kilometre per hour speed limited.  Later examination of your vehicle revealed some defects in its braking system.  I do not find this played any role in the collision.

16Based on observation of you by other drivers and expert examination of the accident scene, I find that on approach or on the left curving point of road I have described, you moved to the right and over the centre some relatively short distance,  perhaps of up to about two feet.  A following driver described just the right wheels being “on the other side.”  You braked and corrected to the left, lost control of the trailer;   it fish-tailed and swung to the right, slid,  covering much of the northbound lane and ended on its side.  Andrew Rodger had been travelling north within his lane.  His vehicle has appeared to have struck the trailer heavily and moved a very considerable distance off the road to its left, west, and onto a rural property and into a farm shed.  Andrew Rodger died from multiple injuries at the scene.  There was very substantial damage to the truck cabin.

17Immediately after the collision you presented as shocked and confused.  You called ‘000’.  You appeared not aware that there had been collision with another vehicle.  I find that it was in that situation or context that you falsely stated to another driver who had stopped that you had swerved to avoid kangaroos.  A blood sample was taken and analysed which revealed neither alcohol nor drugs in your system.

18You have pleaded guilty of and will be sentenced for,  the offence dangerous driving causing death.  That entails that you drove in a manner which significantly increased the risk of serious injury or death to other road users.  Relevant to that is the size and weight of your vehicle and conditions of the traffic, road and lighting.  However, the essential subjective basis of the dangerous driving, what you did to cause it, was the movement to the wrong side of the road caused by inattention and then over-reaction or correction to that.

19I find that both the movement across and your inattention causing it were short lived.  The movement onto the wrong side was relatively minor in distance.  Your over-correction, which was the major cause of the loss of control and catastrophic event that followed,  I see to be an error, albeit  understandable in responding to your situation.  There was a good deal of traffic coming in the opposite direction.  It all happened quickly.  It is not suggested that there were other failures such as excessive speed, careless, incompetent or bad driving over any sustained period.

20Your failure, that inattention, was at or very close to the left bend in the road and as I have said was short lived, perhaps even within the description of momentary.

21In making this analysis of your subjective moral culpability,  I am careful not to be unduly affected by the extraordinarily violent, traumatic collision between the vehicles.  However that is relevant in other ways.  Driving in a manner dangerous causing death is an offence which strongly focusses on the objective circumstances and consequences,  which here are dire.  Further, the horrific nature of the collision causing Andrew Rodger's death could not but have added to the victim impact of it upon his wife and family.

22The victim impact statement of Meshel Fanua describes that impact upon her and the family.  She feels great loss, isolation, dread and anger.  She feels guilt that the emotional damage to her harms connection with and support of her children and grandchildren.  She suffers and is treated for ongoing conditions of depression and anxiety.  There are cycles of isolation despair and then fear and concern for family.  Work and social life has been affected.  There is considerable financial loss.  Ms Fanua feels unsafe, at times worthless,  and like giving up.  She states that it is a struggle to get through each day.  I am not complete.  There is great and ongoing victim impact,  as whenever there is loss of a loved one's life.  It must be taken into account in my sentence of you.

23You are now aged 53 years.  You have two brothers and a sister, all in their early 50s.  Both of your parents are deceased.  You were raised and educated in the western suburbs of Melbourne,  leaving school after Year 9.  You ultimately moved into the transport industry and have worked as a driver for over 30 years.  You suffer 70 per cent deafness,  thought by you to arise out of treatment for a cleft palate when a child.  You are married with a son aged 10.  You have a young adult daughter from a previous relationship to whom you are close.  You have been with your wife for over 15 years.

24Your son is diagnosed with attention deficit hyperactivity disorder and autism spectrum disorder;  and is seriously affected by this.  Your wife suffers physical and mental health conditions.  This includes chronic asthma and a serious form of diabetes which requires a minimum of five injections of insulin and several blood glucose tests each day.  She has deteriorating mental health with long-term treated conditions of depression and anxiety,  now exacerbated by your legal predicament.

25Your treating psychologist diagnoses depression and, particularly, of post-traumatic stress disorder in response to the collision.  This features flashbacks, sleep disturbance, suicidal thinking, panic and self-harm.  In June of this year, despite an attempt to do so, you had not been able to return to your work as a driver.

26I accept that the events and consequences of your offence have had a strong impact upon you.  You see a psychologist and psychiatrist and take medication.  A Forensicare mental health advice attached to the assessment report of your suitability for a community correction order finds a mental health concern of 'moderate severity'.

27You have a number of prior convictions, court appearances being between 1986 and 2009.  There are offences of driving whilst disqualified and suspended in 2007 and 1992.  Many of your offences are over 20 years old and a number did not lead to conviction.  Given the age of your criminal record and the circumstances of this offending conduct, I do not find your prior offending to be of high relevance.

28Dangerous driving causing death is a very serious offence. As here,  the consequences and harm are dire.  As indicated, I have found your moral culpability to be low however the impact has been very high.  The sentencing purposes of general deterrence and denunciation are important and I must attempt to reflect that in a proportionate sentence.  Community protection in that sense is important.  In the circumstances of this offending general deterrence is a particularly important sentencing purpose. 

29Further, consistent with these propositions, dangerous driving causing death is a Category 2 offence and comes under the applicable provisions of the Sentencing Act particularly ss5(2H), (2H)(c), (2I) of the Act.  Ms Parkes’ considered outline of submissions sets out this sentencing regime.  Relevant to my sentence, I must impose a sentence of imprisonment, not combined with a community correction order, unless there are substantial and compelling circumstances that are exceptional and rare and justify not imposing such a prison sentence (s5(2H)(e)).  In making this judgment I must regard general deterrence and denunciation as more important than other sentencing purposes.  I must give less weight to your personal circumstances than to the nature and gravity of your offending.  I must not have regard to previous good character and early guilty plea, rehabilitation prospects or parity.  I must have regard to the parliamentary intention that sentences other than such imprisonment should not be ordinarily made.

30As the appellant court authority as to which Ms Parkes has referred me states, s5(2H)(e) and the related provisions set a high hurdle.  I was particularly directed to this part of the decision in Farmer v The Queen [2020] VSCA 140. I quote:

“In many cases, given the type of offences within Category 2, a term of imprisonment will be inevitable.  In some cases, the operation of s5(2H) will be harsh.  In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice.  That may be particularly so for young offenders.  To a degree paragraph (2H)(e) guards against the risk of injustice.  But the stringency of the test cannot be ignored.”

31After carefully considering the evidence I find that your case comes within that category described in Farmer which meets the test of s(2H)(e).  There is a combination of factors leading me to this. 

32(1).    Predominant is consideration of the hardship I find will be caused to your family,  and particularly son,  if you are imprisoned.  This must be found as exceptional in itself to be considered a relevant sentencing factor.  The leading case stating this is Markovic v The Queen [2010] VSCA 105. The evidence presented persuades me that it is here. As earlier stated, your 10 year old suffers, I find to a significant serious level, autism spectrum disorder. The evidence raises a number of relevant features, although I am not exhaustive. He has great difficulty engaging with those outside the family and in adjusting to changes in family dynamics. He is highly dependent on his parents, and in particular and growing areas, upon you.

33He suffers separation anxiety, night terrors and presents with loss of control, aggression to others and self-harm.  In different ways he needs assistance in meals, showering, dressing, toileting, with medication, schooling and bed time routine.  You play a critical individual role in a number of these areas.  Related to this,  he now weighs 9 stone and there is increasing difficulty in physical control of him.  You are important to that.  He has not adjusted well to COVID-19 restriction and to the prospect of separation from you.  There has been a deterioration in his behaviour.

34There is also a broader family context, his mother suffers poor health and I find that the difficulties and consequences for her in caring with you for her son would be very great, likely insurmountable.  The family has limited financial support.  As I have said, I am not complete.  There is a need to carefully assess the reality of consequences for your son and family.  It would be unjust to understate or not fully appreciate them.  The question of hardship to others entails consideration of the discretion of mercy.  In my judgment the test of exceptional circumstances relevant to it is met. 

35(2).    I also take into account, albeit in a way restricted by the s5(2H) and related provisions,  aspects of your personal circumstances.  That particularly includes the impact of the offending event upon your mental health.  Related to this,  I find that you are highly and genuinely remorseful, that you have referred to the offending as an accident does not, in the broad circumstances, detract from this.

36(3).    Assessment of the nature and gravity of your offence requires that I take into account my finding that your moral culpability is low.  In saying this, I recognise that the substance of this offence is not just that, but that your dangerous driving took away a life.

37(4).   There are also considerations of additional hardship upon you if you were imprisoned.  There would be the impact upon you of COVID-19 pandemic risk, anxiety, restriction to movement and to supports;  but also in your case the hardship of concern and anxiety about your family's circumstances.  I find that this would likely be very considerable.

38As I have said, the combination or cumulative effect of these factors leaves me to find that s5(2H)(e) is met.  I make clear that the dominant factor is that of hardship to your child and family.  It is that which,  I find,  would be a major cause of injustice if I imprisoned you.  As I have raised,  hardship to others requires exceptional circumstances to be a relative sentencing factor.  It is a similar test to s(2H)(e),  which led to some discussion between myself and counsel.  It is not the same test.  The matters I have found go cumulatively to meet the test stated in s(2H)(e).  The circumstance of exceptional hardship is a very important part of that.

39You have been assessed and found suitable for a community correction order.  That will be my sentence.  It must be of a duration and contain substantial elements of punishment to meet the seriousness of your offence and the relevant sentencing purposes, particularly general deterrence,  that flow from that.

40After considering what I see to be the relevant matters, I sentence you, with conviction, to a community correction order of four years' duration.  The usual terms apply.  The additional conditions are that you perform over that time 450 hours of unpaid community work, 100 hours of program conditions can be set off against that, there will be a further condition that you be under supervision, a condition that you undergo assessment and treatment for mental health as you are directed and also that you engage in programs as directed, particularly directed at this offending.

41Mr Blake still lives in Bacchus Marsh, is that right, Mr Bayliss?

42MR BAYLISS:  That is correct, Your Honour.

43HIS HONOUR:  He has to report at Ballarat I think, that is what the report says?

44MR BAYLISS:  That's correct, Your Honour.

45HIS HONOUR:  I omitted to ask both you and Ms Parkes whether or not you had received the report and the mental health advice.  I presume that you have.  I am sorry I didn't ask you earlier.  Is that right?

46COUNSEL:  Yes, Your Honour.

47HIS HONOUR:  Thank you.  Now that report will be printed out.  To whom, and I will put it to him more formally, to whom must it be sent for his signature of consent?

48

MR BAYLISS:  I can receive the document, Your Honour, and on send it to

Mr Blake, receipt it back and then forward it to the court, Your Honour, would that be appropriate?

49HIS HONOUR:  Is that what should happen, Ms Parkes, do you think?

50MS PARKES:  Yes, Your Honour.

51HIS HONOUR:  Mr Blake, I need to put this order to you in a formal way and then ask for your agreement to it.  It will run for four years therefore it will end on 25 October 2025.

52The usual terms are that you not commit another offence for which you could be imprisoned during the time of the order.  That you comply with a regulation that prohibits attendance at any program or appointment affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from Community Corrections.  You must report to the relevant Community Corrections centre at Ballarat - the document will indicate the address - within two days of the order starting, within two days of today.

53You must let Community Corrections know within two days of a change of address or job, you must not leave Victoria without first getting permission to do so.  You must obey all lawful instructions and directions of Community Corrections.  The additional terms are that you perform 450 hours of unpaid community work over that period, 100 hours of treatment and rehabilitation undertaken can be counted as against those hours.  You must be under supervision of a community correction officer for the four years, you must undergo mental health assessment and treatment as you are directed, you must participate in programs that address factors related to the offending as you are directed.

54Do you understand all of that?

55OFFENDER:  Yes, I do, Your Honour.

56HIS HONOUR:  And do you agree to it?

57OFFENDER:  Yes, I do, Your Honour.

58HIS HONOUR:  I will sign it now and then it will be forwarded to Ms Parkes or the Crown and also Mr Bayliss for your signature.  Is there anything else I need to say or do, Ms Parkes?

59MS PARKES:  An order's required with respect to the licence.

60HIS HONOUR:  Yes, of course.  I am at large in relation to that, am I right?  There's no particular - - -

61MS PARKES:  It's a not less than 18 months, Your Honour.  Not less than 18 months.

62HIS HONOUR:  Yes.  I think I am obliged, Mr Bayliss, a period of some length given the consequences of this.  I am going to impose a period of five years before he may apply for another licence.

63MR BAYLISS:  Yes, Your Honour.

64HIS HONOUR:  Anything else I need to do?

65MS PARKES:  Section 6AAA indication, Your Honour.

66HIS HONOUR:  Yes, of course.  Had you not pleaded guilty I would have imposed a sentence of imprisonment of two years with a minimum term of 12 months.  Anything else?

67MS PARKES:  No, thank you, Your Honour.

68HIS HONOUR:  Before I go, my respects to you, Ms Fanua and I hope you can continue with the help of your family to deal with the consequences of what has happened to you.  I will turn people off now.

69COUNSEL:  Thank you, Your Honour.

- - -