Director of Public Prosecutions v Board, Vernon
[2012] VCC 2133
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01921
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VERNON BOARD |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2012 | |
DATE OF SENTENCE: | 20 December 2012 | |
CASE MAY BE CITED AS: | DPP v Board, Vernon | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2133 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – Guilty plea - one charge of dangerous driving causing death – three charges of dangerous driving causing serious injury – car on wrong side of the road, collided head on with oncoming vehicle – evidence of erratic driving for three kilometres before collision – accused aware he was tired and kept driving – assessment of level of moral culpability – weight to be given to past good character- remorse and acceptance of moral culpability – whether wholly suspended sentence in range – consideration of applicable cases - application of principle of mercy – immediate imprisonment – short non-parole period.
Cases Cited: DPP v Janson [2011] VSCA 19, Marsh v The Queen [2011] VSCA 6, DPP v Oates [2007] VSCA 59, DPP v Neethling [2009] VSCA 116, R v Whyte [2002] NSWCCA 343, R v Jurisic [1998] NSWSC 423, Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77
Sentence:
Charge 1- 2 years 6 months imprisonment;
Charge 2- 18 months imprisonment, 6 months to cumulate on Charge 1;
Charge 3- 18 months imprisonment, 6 months to cumulate on Charge 1;
Charge 4- 18 months imprisonment, 6 months to cumulate on Charge 1;
Total effective sentence of 4 years imprisonment. Non parole period of 18 months. All licences cancelled and disqualified for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. A. Trapnell S.C. | Office of Public Prosecutions |
| For the Accused | Mr M. McGrath | Balmer & Associates |
HER HONOUR:
1 On a fine Sunday afternoon 14 months ago, 23 October 2011, you, Vernon Board, were driving a car in which your wife and mother-in-law were passengers along Monbulk Road in Monbulk. You had driven from the Noble Park area and were on your way to the tulip farm not far from the point where the collision that brings you before this court occurred.
2 Your car had been seen for a distance of up to three kilometres before the collision drifting across the road. You had said to your wife during that stretch of road that you were tired and were thinking of looking for somewhere to stop. You did not. The last of the drifts resulted in your car drifting completely onto the wrong side of the road and colliding head-on with an oncoming vehicle. As a result of that your 97-year-old mother-in-law who was seated in the back of the car was killed. Your wife sustained serious injuries. So did the driver and the front seat passenger of the car that your car ran into. The two children who were in the back of the other car suffered minor injuries, but nothing serious.
3 It is as a result of that, that you come at the age of 72 to be sentenced for one charge of dangerous driving causing death and three charges of dangerous driving causing serious injury.
4 I want to say a little more about the injuries sustained by the three surviving victims and about the nature of the driving itself. Your wife, Elva, who was sitting in the front seat beside you suffered a broken sternum, broken ribs and a broken left foot, and fractures to her neck. The severity of her injuries was such that she was air-lifted to the Alfred Hospital for treatment. She spent some time in hospital and a longer time in rehabilitation. She, although out of rehabilitation and back home, is still on the path to recovery and has not made, and probably will not make, a complete recovery. She still receives weekly physiotherapy, and it was clear when she gave evidence in court on your behalf in the course of the plea hearing that she still needs a crutch for walking or moving assistance.
5 Michelle Adins, the passenger in the car that your car ran into, also suffered a fractured sternum. Her left big toe was also broken and she sustained deep lacerations to her forehead and right forearm, and tore the right forearm muscles, as well as sustaining significant bruising to her chest and torso. She too was required to be air-lifted and was taken to the Royal Melbourne Hospital for treatment. She too has not made, and will not make, a complete recovery. She has significant disfiguring scarring to her face and to her right forearm. The torn muscles in her arm have not made a complete recovery and probably will not. That interferes with her activities of daily life at work and in the care of her young children.
6 Her partner, Steven Helmore, who was driving the car that you ran into, suffered a broken right leg, broken ribs and bruising. He, along with one of the children, Rider, the two-year-old, was taken to the Maroondah Hospital. After treatment he has made a more complete recovery than either your wife or Ms Adams, but he too suffers some continuing residual pain and discomfort from his injuries.
7 Two-year-old Rider, the younger child of Ms Adins and Mr Helmore, suffered an abrasion to the neck and bruising to his right clavicle. He was in the same hospital as his father and therefore was able to have his father with him during the time that he was needing to be assessed.
8 Quinn, the older child of Ms Adins and Mr Helmore, was then 11. He, as it turned out, suffered injuries no more serious than bruising to his chest and abdomen. However, there were concerns about his condition immediately following the collision, and he too was required to be air-lifted to a major trauma hospital for treatment, and he spent some time in the Royal Children's Hospital. Because both of his parents had been injured and had been taken to separate hospitals, that meant he was at that hospital without a parent able to be with him during what must have been a deeply frightening time for him. That is one of the impacts that Ms Adins particularly refers to of the extended impact of the collision beyond the physical injuries that she sustained.
9 You too were injured, but not seriously. You suffered severe bruising to your right ankle. You too were taken to the Royal Melbourne Hospital for careful assessment before it was discovered that that was the extent of your injuries and they were no more serious for you than that. Nothing has been said to suggest that you have suffered any residual physical harm as a result of that.
10 There was no alcohol or blood present in your system and I will return to the significance of the absence of alcohol in your system later.
11 The area where the collision occurred is a winding road in the hills. It is a two-way road, Monbulk Road, with one lane running in each direction. It is a road in good condition, its only risk being that it is a winding road. On the Sunday afternoon when the tulip festival in Silvan was on, which was your destination, it was a road that carried moderate traffic in both directions.
12 A Mr Walter was driving behind you in that three kilometre stretch. He saw you during the period from the roundabout at Monbulk up until the time of the collision drive in a way that caused him real concern. Twice your car veered onto the wrong side of the road and once onto the gravel on the left side of the road. It also veered from side to side within your lane on a number of occasions. He described it, and it would appear correctly, as erratic driving.
13 He said these things that were quoted in the prosecution outline for the plea and which I think are worth repeating here.
"It veered slowly to the right. The right side tyres went onto the incorrect side of the road by about a foot. It then straightened and followed the line of the road with the right-hand tyres still across the centre line for a couple of seconds, and then it drifted slowly back onto the correct side of the road. When it drifted back there didn't appear to be any sense of urgency by the driver to return to the correct side of the road. As it was going around the right-hand bend it drifted wide to the left, towards the exit of the bend. The left-hand tyres went onto the gravel on the left side of the road. The left-hand wheels were on the gravel by about six inches, and it was very noticeable. It again slowly drifted back into the lane. The reactions of the driver appeared to me to be slower than normal.
It again drifted partially into the right-land lane. This manoeuvre was similar to the last two, in that it was a gentle and slow drift and, again, there was no sudden movement back to the correct side of the road. On this occasion the right-hand wheels were on or just over the centre line and remained like that for only a second or so. I noticed the car was veering from side to side within its lane. These movements were gentle and inconsistent. I was approaching the left-hand bend. I remember the car just going straight ahead at this bend. It didn't appear that it slowed at all, as my distance behind it didn't appear to change. The Commodore didn't take any evasive action, and it was like it just didn't turn. It went most of the way into the right-hand lane, but my attention was drawn to a small, gold-coloured four-wheel-drive coming in the opposite direction. Both of the cars then collided head-on, but on a slight angle, and in the right-hand lane."
14 Your car and the car that yours ran into were both examined after the collision. Although there was insufficient tread on the rear tyres of your car, it was otherwise roadworthy and that insufficient tread did not in any way cause or contribute to the accident. The other car was completely roadworthy.
15 Your counsel, Mr McGrath, in the course of his thorough, careful and very considered plea acknowledged correctly that this was not low end of the scale dangerous driving. You were aware that you were tired and must be taken to have made a conscious choice to continue driving. As Mr Walters' statement makes clear, you were seen to be driving erratically for a considerable distance, up to three kilometres on a winding road, before you drove into the path of that oncoming car driven by Mr Helmore. It was acknowledged you could have pulled over to the verge on the side of the road at any time. The number of separate acts of veering, both across and outside your line and within it, describe what properly is described as a pattern of erratic driving over a considerable distance.
16 This is not a case of "unthinking negligence", to use the term used by the Court of Appeal in DPP v Janson[1] at [35]. Nor is it, to apply the words used by Weinberg JA and King AJA in Marsh v The Queen[2] at [17] to the facts of this case, a case of momentary inattention resulting in unforeseen and unforeseeable consequences. To the contrary, the collision was an entirely foreseeable result of your having chosen to continue driving at a time when you knew that you were drowsy, and when your car had already, on a number of occasions, veered significant distances from its proper course before its path was corrected.
[1]DPP v Janson [2011] VSCA 19
[2]Marsh v The Queen [2011] VSCA 6
17 The authorities to which I have been referred make it clear therefore that your moral culpability is higher, significantly higher than that attaching to drivers whose momentary inattention results in unforeseen and unforeseeable but catastrophic consequences. The Court of Appeal has repeatedly said a term of imprisonment is usually warranted for cases of dangerous driving causing death, except where moral culpability is low.
18 I rely in particular on DPP v Oates[3], where the Court of Appeal said the following things: "General deterrence is important in cases of dangerous driving causing death."[4] "The sentence which is imposed for dangerous driving which causes death or serious injury must take account of variations in the moral culpability of those who commit this offence"[5]. "Moral culpability is reduced where the accident is cause by momentary inattention or misjudgement"[6]. And, "A custodial sentence will usually be appropriate for an offence of this kind, except in cases where the offender's level of moral culpability is low."[7].
[3]DPP v Oates [2007] VSCA 59
[4] Ib id at [25]
[5] Ib id at [21]
[6] Ib id at [25]
[7] Id id [22]
19 I also rely on DPP v Janson, where the court of appeal affirmed the factors set out in DPP v Neethling[8], which in turn adopted what the New South Wales Court of Criminal Appeal had set out in R v Whyte[9], which in turn had followed the principles set out in R v Jurisic[10], which may aggravate dangerous driving causing death. They are:
[8]DPP v Neethling [2009] VSCA 116
[9]R v Whyte [2002] NSWCCA 343
[10]R v Jurisic [1998] NSWSC 423
(1) the extent and nature of the injuries inflicted;
(2) the number of people put at risk;
(3) the degree of speed;
(4) the degree of intoxication or of substance abuse;
(5) erratic or aggressive driving;
(6) competitive driving or showing off;
(7) length of the journey during which others were exposed to risk;
(8) ignoring of warnings;
(9) escaping police pursuit;
(10) degree of sleep deprivation;
(11) failing to stop.
20 Relevant aggravating features here are, first, the number of victims; one person killed and three seriously injured. Ms Lord, your mother-in-law, was elderly and frail. Although her remaining years may have been few, her life is no less valuable because she had already lived much of it. The injuries, particularly those to Ms Adins and your wife, are serious examples of serious injury. Fourteen months after the collision they are still not fully recovered, and will never be restored to the health and wellbeing that they enjoyed before.
21 I have already mentioned the disfiguring scars that Ms Adins has on her arm and face. It is unclear whether she will make a full recovery from the injuries to her arm and her foot. She struggles with some activities of daily life. Simple tasks at work and home are painful. She is particularly affected in the way that she can tend to, care for and play with her children. She is also affected at work in the tasks that she performs there.
22
Your wife, Elva Board, is still receiving physiotherapy to assist her rehabilitation and may not make a full recovery. She needs assistance to perform domestic duties and other tasks she previously shouldered responsibility for. Driving long distances is painful and she tires easily.
Mr Helmore still has some but lesser, it would appear, residual pain and discomfort.
23 Next, there were others put at risk. The two young children of Ms Adins and Mr Helmore were mercifully not seriously injured, and have recovered from the physical injuries they suffered. Others on the road were also put at risk. Although only two cars were involved in the collision, there were other cars in the vicinity whose occupants were also imperilled.
24 I have already referred to the fact that you knew you were tired, and that your driving had been erratic for some distance, up to three kilometres. Despite the number of times you drifted and recovered you did not stop when you could have, but chose to keep driving. Thus, a number of the factors identified in Janson, Neethling, Whyte and Jurisic as aggravating dangerous driving are present in your case.
25 However, it is clear that you were driving at or under the speed limit, that there was no intoxication or substance abuse, nor any competitive driving or showing off. There was no escape of a police pursuit, there was no failing to stop after the accident and, although you were tired, it is clear that there was no warning or indication to you that you were tired or sleep deprived until the time of the driving itself.
26 Mr McGrath's submissions were directed to the imposition of a fully suspended sentence. Amongst the materials he produced and provided on the plea was a schedule which listed recent cases of dangerous driving causing death, sometimes coupled with other charges of dangerous driving causing serious injury or other related charges, and where suspended sentences had been imposed. Leaving aside those cases where the sentences imposed were imposed before the maximum penalty for dangerous driving causing death was increased from five years' to ten years' imprisonment, it is clear that there have been a number of fully or partially suspended sentences which have been imposed since the penalty for dangerous driving causing death was doubled, and that a number of those have not been the subject of appeals by the Director of Public Prosecutions. In some of those cases the prosecution had submitted that a fully suspended sentence was in range.
27 In this case Mr Trapnell SC submitted that a fully suspended sentence was only open if I were prepared to extend mercy. He submitted that a sentence which was proportionate in all the circumstances and which allowed for proper cumulation between the charges so as not to make the individual victims a statistic, must inevitably result in a sentence of greater than three years' imprisonment. That is outside the range where a sentence can be suspended. He submitted the lowest total effective sentence for the four charges was three and a half years' imprisonment. That was broken down to a lowest end of the range sentence of two years for the charge of dangerous driving causing death, and at least 18 months' cumulation for the three dangerous driving causing serious injury charges.
28
Each case, of course, must be considered on its own facts. In assessing
Mr McGrath's table there is only one instance, the case of Johnstone, where a fully suspended sentence has been imposed since the maximum penalty for dangerous driving causing death was increased to ten years for multiple charges of dangerous driving causing death. There, a finding of low-level moral culpability was made as a result of a moment of inattention. Individual sentences of two years' imprisonment were imposed for each charge of dangerous driving causing death and six months' cumulation, or one quarter of the sentence on the second and third charges, was ordered.
29
There were two cases where a fully suspended sentence was imposed for one charge of dangerous driving causing death and one of dangerous driving causing serious injury. In Janson the court divided on whether the driving there fell at the low end of the scale of dangerous driving or not. The respondent in that case had driven into an intersection against a red light. He had travelled a distance of just under 200 metres in a time of 10 to
11 seconds from the time the lights applicable to him had first turned amber. His speed was 70 kilometres an hour, 10 kilometres an hour under the speed limit. He was looking for a turn-off. It was accepted he had failed to see the lights, that is, that it was inattention for that period of 10 to 11 seconds, rather than tiredness or an attempt to run a red light which had caused him to enter the intersection against the light. He struck a car entering the intersection on a green light, killing two children and seriously injuring the driver and two other children in the car.
30 Nettle JA, with whom Kyrou AJA agreed, held it was not, in the circumstances, offending at the low end of the dangerous driving scale. He relied on the fact the respondent was driving a prime mover with a trailer on a major road in a built-up area, in the known vicinity of controlled intersections. Nettle JA found the lapse of attention for that period amounted to "a most remarkable failure to keep a proper look-out", and held that the nature and gravity of the offending should be assessed accordingly.
31 Neave JA held that it was open to find that the moral culpability for driving was at the lower end of the scale. Her Honour found the respondent ought to have seen the amber light well before the intersection and begun to brake, and ought to have been aware that a collision between his truck and another vehicle was likely to have disastrous consequences for the occupants of the other vehicle. A large number of people were put at risk, and the consequences of failing to see and stop at the red light were devastating. However, she found the respondent was not driving aggressively, competitively or exceeding the speed limit. He did not run the red light and was not affected by lack of sleep, alcohol or drugs.
32 All members of the court in Janson found that the sentence imposed for the two charges of dangerous driving causing death, namely, a term of imprisonment of three years full suspended, was manifestly inadequate. Neave J said she would have exercised the discretion not to interfere with the sentence, having regard to the respondent's circumstances at the time of the hearing of the appeal. The majority, however, considered intervention in the sentence was warranted and imposed a term of immediate imprisonment.
33 In doing so, Nettle JA made it clear that despite the prohibition on taking double jeopardy into account, that the actual sentences imposed for the charges of dangerous driving causing death were less than would otherwise have been appropriate if sentencing to immediate imprisonment had occurred at the time of the plea. He took into account the mitigatory effects of the respondent's psychological condition and the hardship of being re-sentenced to immediate imprisonment following the imposition of suspended term which had run for eight months.
34 The sentence on each charge of dangerous driving causing death was still, despite those factors identified by Nettle JA, two years and six months, with substantial cumulation, 18 months, giving a total effective sentence of four years. The court imposed sentences of 12 months on each of the three dangerous driving causing serious injury charges, which were to be served concurrently with the sentences for the dangerous driving causing death charges. Again, Nettle JA made it clear the sentences were less than would otherwise be appropriate. That was because the respondent had already completed the unpaid community work component of the Community-based Order which had been imposed for those charges and which had run on the other conditions for the eight months before the appeal was heard and determined.
35 I consider Janson must guide me in determining the appropriate sentences here. That is, first, that an individual sentence for dangerous driving causing serious injury or causing death of two years, six months, for dangerousness above the lower end of the scale was lower than would be appropriate if sentencing at first instance, even if there were evidence of psychological suffering of the extent experienced by Mr Janson.
36 And secondly, that a sentence of 12 months' imprisonment for dangerous driving causing serious injury and without cumulation is justified only to avoid double punishment. It follows that if sentencing at first instance for an offence of dangerous driving causing death falling above the lower end of the scale there must be some cumulation for each successive charge and the individual sentences for dangerous driving causing serious injury must be greater than 12 months' imprisonment.
37 In light of the matters I have identified I accept Mr Trapnell's submission, that unless I am prepared to extend mercy no sentence other than immediate imprisonment, and for a term greater than that which would permit suspension, is in conformity with current sentencing practices and the guidance provided by Court of Appeal.
38 How then do I apply principles of mercy? In Markovic v The Queen[11] a five Bench court considered the application of the principle of mercy in cases involving family hardship. It cited with approval the following passage from Professor Fox's article 'When Justice Sheds a Tear: the place of mercy in sentencing’.
"The true privilege of mercy is to be found in the residual discretion vested in each sentencer which allows a downward departure from the principles of proportionality outside the principles of mitigation. It can be utilised in exceptional circumstances to allow weight to be given to factors which are ordinarily not regarded as relevant mitigating considerations. It allows sentencers to give effect to significant but as yet unaccepted circumstances which in their opinion warrant leniency".
[11]Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105
39 In Markovic the court said this;
"There must always be a place in sentencing for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case".
40 It qualified that principle by adding,
"The primary function of the Sentencing Court is to impose a sentence commensurate with the gravity of the crime".
41 The apparent tension between those two principles was revisited in Adams v The Queen[12] where the court said at [70],
"The facts of a particular case may justify the sentencing judge adopting a merciful approach to the exercise of his or her sentencing discretion. However, while considerations of mercy may inform the appropriate range they cannot justify a manifestly inadequate sentence.”
[12]Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77
42 I was the sentencing judge in Janson. It was a case in which in my view mercy was justified. The analysis I have just gone through of the reasons of the Court of Appeal for holding the sentence in that case was manifestly inadequate lead me to the conclusion that mercy here cannot justify the imposition of a fully suspended sentence as it would be manifestly inadequate.
43 This case, although having significant mitigating features, is lacking some of the significant features which made Mr Janson's case in my view, one deserving of mercy. As Nettle JA noted at [13], the uncontested psychological and psychiatric evidence there revealed he was suffering a major depressive disorder of moderate severity and was in need of long term psychological support to address his guilt and assist in rebuilding his life. His symptoms were likely to increase if incarcerated so properly enlivening the sixth Verdins principle. The severity of his depression was such that he had given up his work as a truck driver. He had attempted to return to his previous occupation as a carpenter but had found it difficult to concentrate or work at his previous level.
44 Neave JA, in deciding that he should not be re-sentenced despite the finding of manifest inadequacy of the original sentence said at [52],
"The respondent's life has been irreparably changed as a result of the accident. He has given up truck driving and his marriage has broken down because of his psychological condition arising out of the accident. He continues to suffer from considerable guilt and remorse and has become socially isolated".
45 At [53] Her Honour accepted imprisonment would be more burdensome for him than for a person not suffering from the depression he had been diagnosed with and that it also may be exacerbated by his serving a gaol term.
46 You have been spared these consequences. There is no evidence you suffer any psychiatric or psychological condition as a result of the guilt and remorse you have experienced as a result of the accident. There is no evidence imprisonment would be more onerous by reason of any psychiatric or psychological condition or may exacerbate such a condition. Your marriage is intact and although your mother in law was killed and your wife seriously injured your wife remains loving and supportive. If she thought there was anything to forgive for having caused her mothers' death or her own injuries she clearly has fully forgiven you.
47 Ms Adins and Mr Helmore are neither particularly forgiving nor particularly vengeful. Although in Marsh the court considered that the attitude of the victims could be relevant to the exercise of the sentencing discretion, there is nothing in the circumstances here which in my view arising out of the victim's attitudes which would place this case in an exceptional category.
48 By contrast, in Janson the victim impact statements made clear how deep and long lasting the grief of the families of the children who were killed, was. That was referred to particularly by Neave JA, and she referred to that specifically as a relevant feature which weighed heavily against the weight to be given to Mr Janson's suffering.
49 Coming back to the analysis of the differences, with the consequences between you and Janson; unlike Mr Janson you have been able to carry on with your normal activities. You had already retired from your previous occupation as a painter but your church activities and volunteer work, to which I will refer to in more detail shortly, have continued unabated and you have continued to drive.
50 I accept that you are genuinely remorseful for the consequences of the accident; for the death of your mother in law and for the seriousness of the injuries caused to your wife and to Ms Adins and Mr Helmore. I accept that you were struck by the descriptions in the victim impact statements of Ms Adins and Mr Helmore, not only of the description of the injuries themselves but of the consequences for them including the practical consequences for them in their daily lives, in the way they can carry out their role as parents to their two young children, in their domestic activities and in their work.
51 However, I was concerned about the absence of any submissions or evidence in the otherwise extraordinarily impressive testimonials at oral character evidence, or in the psychological report prepared by Mr Joblin, that you accepted moral responsibility for causing the collision by failing to stop and rest in face of your awareness that you were tired.
52 Despite your guilty pleas to the dangerous driving charges, the overwhelming thrust of your case and what I understood of your position was, that it was an accident with terrible consequences. I raised my concern about this with Mr McGrath in the course of the plea. He acknowledged that there was nothing in the materials, or in what he had put based on his instructions, to indicate that you were articulating an acceptance of responsibility for the choice or decision to continue driving and not to stop and rest when you were aware you were tired.
53 Even after I stood the matter down so Mr McGrath could confirm his instructions, what was put to me as your position was that you had no recollection of the collision, that you remembered collecting your mother in law from Noble Park and heading towards Belgrave and then after the collision apologising to your wife and as you were being removed from the car to the ambulance asking if your mother in law was coming too.
54 Mr McGrath said you instructed that you cannot dispute the observations of Mr Walter and that you accept that you should have pulled over if you were tired and accept that if you had pulled over we would not be here. Mr McGrath then called you and you confirmed that that was your position. It was clear that what Mr McGrath had put to me of your position before he called you was an almost verbatim recounting of what you had told him. His accuracy was remarkable. I mean that in a complimentary way. The only additional information you gave was that your last recollection of driving was at the roundabout at Monbulk. When asked about what your wife had said in her statement, namely that you had said that you were feeling tired and would look for somewhere to pull over, you said you could recall saying that but could not remember how far along the road you were when you said it. You again said you accepted that if you had pulled over we would not be here.
55 Even when the issue of taking responsibility for the decision to continue to drive when you knew you were tired was squarely raised, that was the highest it was put. I am left with the strong impression that you regard this as an accident and that you have not yet been able to acknowledge your moral responsibility lies in that decision to continue to drive and not pull over when you knew you were tired.
56 This does not of course aggravate the seriousness of the offending. It is relevant only in comparing the quality and significance of remorse in this case and that of Janson, that is in identifying the similarities and differences in your circumstances which bear on the correct sentence to be passed on you.
57 You have many and powerful factors counting in your favour. You pleaded guilty at the earliest opportunity. You are entitled to the benefit of that plea for its utilitarian purposes for sparing the time and cost of trial and for sparing the victims, your wife as well as Ms Adins and Mr Helmore, the ordeal of building up to trial, facing trial and having to relive the events by giving evidence. You have accepted your legal responsibility and you are clearly remorseful for the consequences of your conduct. In my view you are entitled to the full weight that can be given to an early plea in those circumstances.
58 You have led for the past 30 years an exemplary life. You and your wife Elva are committed Christians and have been actively involved in a number of church communities. You have used your time and energies to contribute to church communities in spiritual and practical terms. You have devoted much of your spare time to helping those less fortunate than you. You have taken part in outreach work here, in the Asia pacific and in remote aboriginal communities that has involved practical assistance as well as joining in worship.
59 You have volunteered in orphanages, taught painting skills, painted and maintained churches. You and your wife brought a large home specifically so that you could assist people and families fleeing violence or adversity, disadvantaged by factors such as mental illness or who were recovering from substance abuse, to provide people with somewhere to stay, somewhere safe, stable and supportive. I am told that over 50 people, individuals or families, have been provided with shelter in your home as a result of this decision and your commitment over the years.
60 Mr Edwards, a pastor from the Australian Christian churches, gave evidence on the plea. He said that amongst the 28 people at court with you there was a representative from every church that you had been involved in over the last 30 years. He said, and I accept, that is a testament to the regard in which you are held by those who have known you and have contact with you over all of those years.
61 This last 30 year history is all the more impressive because your childhood was marred by significant disadvantage and your adulthood, until your early forties, by alcoholism. You had no contact with your biological parents as a child. You spent the first seven years of your life in an orphanage before your paternal grandmother took on responsibility for raising you and one sister. You had a number of other siblings but had little contact with them. You had no contact with your mother until you were an adult and she was in her fifties. You had no contact with your father.
62 Once taken under your grandmother's care there was greater stability in your life and in your schooling. You left school relatively young but have had a very good work history and that continued despite your alcohol abuse in the first 20 years of your adulthood.
63 You married relatively young and your first marriage floundered because of your alcohol abuse. To your great credit you went into residential treatment with The Salvation Army in 1983 and you have been sober since then. You met and married your second wife Elva a few years after you became sober and the marriage is obviously a strong and happy one. Each of you seemed to have earned and deserved the love and support you give each other and you appear to provide a great model to other people of how successful marriages can work.
64 It is clear on the material before me that you are a very good son in law, that you loved your mother in law as if she were your own mother and that you have been a good stepfather to Elva's adult daughter. You have a good relationship with your own daughter, one of the three children of your first marriage, and your daughter and step daughter were amongst those who were at court and wrote letters attesting to your qualities.
65 The only previous convictions you have are drink driving convictions, occurred before you stopped drinking in 1983. Usually previous convictions for drink driving would be significant in a case of dangerous driving causing death and serious injury but that is not so here, given the age of those convictions and that remarkable change and consistent and sustained change in your life since then.
66 You are 72 and are in good health. The only health problems that you suffer are, consistently with many people in our community carrying more weight than your doctors know is safe for you and you have recently been diagnosed as suffering from sleep apnoea. It was not suggested age or health would make imprisonment more onerous.
67 Your wife Elva is suffering residual disabilities still from her injuries. She is a remarkable woman. She comes across as positive, uncomplaining and accepting of the limitations the injuries have imposed upon her. You have assisted her in activities of daily living since she sustained her injuries and it is clear that she will struggle physically and emotionally without your assistance. It is not suggested that this falls into the category of exceptional family hardship as the authorities define it but I accept that it would be more difficult for her if you were in prison and that you would feel the burden of that. You have what would appear to be a well founded confidence that if you were to be imprisoned your friends and supporters in the church communities would look after her.
68 There are no winners in a case such as this. If I had to consider your personal circumstances alone I would see no need to impose a term of imprisonment on you. But that is not the only consideration. General deterrence, just punishment and denunciation all must be given proper weight. Driving cases where lives are lost and change forever are often cases where we are called upon to sentence otherwise good and decent people to imprisonment.
69 I see no option if I am to apply sentencing principles that I have identified properly other than to sentence you to a term of immediate imprisonment. It must be long enough to properly reflect your moral culpability for the life taken and the injuries inflicted on the three victims, to reflect the needs of general deterrence, just punishment and denunciation.
70 Cars can be very dangerous weapons. People who are tired and cause enormous harm as your case demonstrates, otherwise good, careful and responsible people can cause enormous harm - if they make a decision to keep on driving when they are tired. The force of a car no longer under the control of a driver who has gone to sleep has the potential to cause enormous harm and injury to other road users and that is exactly what happened here. We must make it clear to people who drive that if they are tired they must stop, that it is not sufficient to say I am nearly there, I will keep on going, or to say I think I will be all right. You imperil yourself and others. We must make that message very clear that people must take responsibility for stopping in such circumstances, no matter what inconvenience might be caused.
71 Your good life over the past 30 years must be properly reflected, both in the head sentence and the fixing of the non-parole period. This is a case where although I consider no sentence other than one of imprisonment must be imposed but is one where consistently with the mercy principle it is reduced as much as I consider it can be and I am going to impose a very short non-parole period. That I consider is open to me without imposing a manifestly inadequate sentence and proper application of mercy.
72 Mr Board, can you now please stand? Vernon Board, on the four charges to which you have pleaded guilty you are convicted. On Charge 1 of dangerous driving causing death, you are sentenced to be imprisoned for a period of two years and six months.
73 On Charge 2 of dangerous driving causing serious injury, you are sentenced to be imprisoned to a period of 18 months and I direct that six months of that be served cumulatively upon the sentence on Charge 1. That charge, Charge 2, is the charge of causing serious injury to your wife Elva.
74 On Charge 3, of dangerous driving causing serious injury to Ms Adins, you are sentenced to be imprisoned for a period of 18 months and I direct that six months of that be served cumulatively upon Charge 1 and the partial cumulation orders I am making.
75 On Charge 4 of dangerous driving causing serious injury to Mr Helmore, you are sentenced to be imprisoned for a period of 18 months and I direct that six months of that sentence by served cumulatively upon Charge 1 and the other partial cumulation orders.
76 That makes a total effective sentence of four years' imprisonment. I direct that you serve a period of 18 months before being eligible for release upon parole. There are no days of pre-sentence detention. All licenses are cancelled and you are disqualified from driving for a period of 18 months. I declare pursuant to s.6AAA of The Sentencing Act that but for your pleas of guilty I would have sentenced you to a total effective sentence of six years' imprisonment and I would have fixed a non-parole period of three years' imprisonment.
77 Are there any further orders? Could you please remove Mr Board?
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