Director of Public Prosecutions v Bohr

[2018] VCC 1012

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

AT GEELONG
CRIMINAL JURISDICTION

CR-18-00351

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODERICK BOHR

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v Bohr
MEDIUM NEUTRAL CITATION:	[2018] VCC 1012

REASONS FOR SENTENCE
---

Subject:Sentencing

Catchwords:             Culpable Driving causing Death -

Legislation Cited:     Sentencing Act 1991 – Crimes Act 1958 – Drugs Poisons and Controlled Substances Act 1981

Cases Cited:

Sentence:                 Total effective sentence of imprisonment for a term of eight years and one month with a non-parole period of five years and six months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Stary Norton Halphen

HIS HONOUR: 

1Broderick Arthur Bohr, you have pleaded guilty to:

·One count of culpable driving causing death contrary to s.218 of the Crimes Act 1958.

·One count of negligently causing serious injury contrary to s.24 of the Crimes Act 1958.

·One count of possessing a drug of dependence namely cannabis L contrary to s.73(1) of the Drugs, Poisons And Controlled Substances Act 1981.

2In addition, you have consented to this Court hearing two summary charges and you have pleaded guilty to the charges of unlicensed driving and exceeding the prescribed concentration of a drug within three hours of driving, the drug being methylamphetamine.

3The circumstances of your offending are as follows. 

4On 28 May 2017 in broad daylight and with good visibility, you drove a motor vehicle on Barrabool Road, Belmont at approximately 100 km/h on the incorrect side of the road whilst attempting to pass two vehicles.  The speed limit at Barrabool Road at that point was 60 km/h.  It appears that you overtook the first of those cars but could not complete the overtaking of the second.  Oncoming traffic caused you to sideswipe the second of those vehicles in an unsuccessful attempt to avoid oncoming traffic.  Your vehicle collided head-on with a vehicle travelling from the opposite direction which was travelling on its correct side of the road. 

5The driver of the oncoming vehicle, Steven Hartle, was airlifted from the collision scene to The Alfred Hospital in Melbourne in a life-threatening condition.  He passed away on his arrival at that hospital as a consequence of injuries sustained by him in the collision. 

6Connor McQueen was a passenger in the vehicle driven by you in the collision.  He suffered serious injury.

7The manner in which you drove your vehicle on that date constitutes Charge 1 - culpable driving causing death, and Charge 2 - negligent driving causing serious injury.

8Police attended at the collision scene.  You were found to have a clear Snap Lock bag containing green vegetable matter in your possession which upon analysis was found to be cannabis L.  This constitutes Charge 3 - possession of a drug of dependence. 

9You were not the holder of a drivers’ licence at the time.

10You were transported to the Geelong hospital where a blood sample was taken pursuant to the requirements of the Road Safety Act 1986. That sample was later analysed and found to contain 0.24 mg/L of methylamphetamine, a drug often referred to as ice, and 0.19 mg/L of amphetamine. It is this conduct that gives rise to the offence of having a prescribed illicit drug in your blood exceeding the prescribed concentration within three hours of driving a motor vehicle.

11The following day, you were discharged from Geelong hospital and conveyed to the Geelong police station where you were asked to partake in a recorded interview.  You responded with no comment to the allegations put to you.  That was your right. Notwithstanding, it was hardly indicative of cooperation with police or with any remorse on your part, at least at that time. 

12The maximum penalties for the offences for which you have pleaded guilty are as follows. 

·Culpable driving causing death - 20 years' imprisonment.

·Negligently causing serious injury - ten years' imprisonment.

·Possessing cannabis - a fine of five penalty units.

·Exceeding the prescribed concentration of a drug in your blood within three hours of driving - 12 penalty units for a first offence.

·Unlicensed driving - three months' imprisonment. 

13You were born in 1975.  Your father died in a motor vehicle accident when you were aged two and you were raised by your mother.  In general terms, your early childhood appears to have been unexceptional. 

14You left school aged 15.  Your counsel informed me that you are currently illiterate.  

15Immediately after leaving school, you commenced an apprenticeship in plastering which you completed after four years.  You worked for some years in that occupation. 

16In about 2010, you commenced your own plastering business which was initially relatively successful.  You employed up to 17 people.  One of your clients got into financial difficulties which affected your business, resulting in you laying off a number of employees.  In about 2014, you ceased that business and moved to Western Australia where you worked in the mining industry for the next two years.  You returned to Geelong and recommenced working in the plastering industry.  You were working in that capacity at the time of the subject offending.

17Soon after, you commenced a new relationship with your current partner.  She has three children, aged three, ten and 12, from a previous relationship.  You are engaged to marry her and are hopeful that this will occur upon the completion of your sentence. 

18You commenced using cannabis in your early teens.  This progressed to daily smoking of approximately 1 g of cannabis.  You ceased such regular use when you were aged in your 30s but continued to use it sporadically prior to your arrest.  In your early 20s, you began using speed or amphetamines sporadically on weekends.  You were introduced to ice or methylamphetamine in the last three years.  That is since about 2015. 

19Although your counsel informed me that you have gradually reduced your use of ice after the commencement of your relationship with your partner, you told Dr Pandurangi (to whom I will refer later) in April 2018 that you still used ice sporadically after commencing that relationship.  You began drinking alcohol in your early teens.  You told Dr Pandurangi that you drank four to five cans of bourbon daily by the time you were in your early 20s - I assume this to be reference to cans of bourbon mixed with a soft drink of some sort - but that you had stopped drinking alcohol in your early 40s. 

20I note that you have a relatively large number of prior convictions, going back to early 2002.  You have convictions relating to drugs, including possession and the use of cannabis.  You have convictions relating to what might be described as unruly and illegal behaviour, including carrying a firearm under the influence of alcohol, behaving in a riotous manner, theft and possession of a controlled weapon without excuse. 

21You also have convictions in relation to the use of a motor car including driving whilst your prescribed concentration of alcohol was in excess of 0.05 per cent, forging a registration label, driving in an unregistered motor vehicle and unlicensed driving. 

22Between 6 and 16 December 2016, that is about five months or so before the subject collision, you committed additional offences.  They were driving at a speed dangerous, three instances of driving whilst disqualified, driving at a speed exceeding the speed limit by between 35 and 45 km/h, two instances of driving an unregistered motor vehicle, and driving with a blood alcohol concentration in excess of 0.05. 

23Although those December 2016 offences occurred some five months earlier and cannot be considered as prior convictions as you were not dealt with for them until June 2017 when you came before the Geelong Magistrates' Court, notwithstanding, they are relevant in assessing your prospects of rehabilitation. 

24Your counsel submitted and I accept that there are some mitigating circumstances to be taken into account when fixing your sentence. 

25Firstly, your early plea of guilty to these offences.  Your plea was made in January 2017, well before the committal hearing was scheduled.  I accept that your plea has significant utilitarian value.  Witnesses have not been required to be involved in either the committal proceeding or in any trial.  Valuable court resources and time were not expended unnecessarily. 

26It was submitted that you are showing genuine remorse for your offending.  This is evidenced, at least in part, by your early plea. 

27A report from Dr Prashant Pandurangi who is a consultant psychiatrist was tendered on your behalf.  That report dated 5 May 2018 was prepared at the request of your solicitors.  He described you as being emotional and tearful throughout most of your interview with him, describing you as being "at times, frankly distressed".  You presented as anxious.  You were apparently still having some difficulty coming to terms with causing someone's death and reported suicidal ideation, although expressing no plans or intent to harm yourself.  I note that you have recently been referred to the Forensicare mobile forensic mental health service for psychological treatment. 

28In June 2017, you were reviewed by a psychiatric nurse who noted - and again I quote - "genuine emotions and remorse" concerning your offending.  For a time, you were prescribed anti-depressant medication. 

29Dr Pandurangi is not your treating psychiatrist.  He has seen you on one occasion recently for the purpose of preparing a report for this court.  He noted your history of significant polysubstance abuse, especially involving cannabis, amphetamines and alcohol.  He noted your explanation that you had used those drugs both for recreational use and to cope with negative emotions.  He noted that you had continued to use drugs and alcohol despite negative consequences, including repeated contact with the criminal justice system. 

30He considered that you would clearly benefit from attending the drug and alcohol program which could commence whilst you were in custody.  He stated that he had hoped that the current offending for which you were then on remand would be of significant motivation for you to desist from drugs and alcohol.

31Dr Pandurangi was of the view that you reported distressing symptoms related to the collision in question and he considered that you were suffering from post-traumatic stress disorder.  You complained of recurrent intrusive nightmares relating to the collision in the form of flashbacks and nightmares.  You remained distressed whilst talking about the incident.  You avoided situations or circumstances which reminded you of the incident, and there was a degree of self-loathing and guilt in relation to your actions on the day of the incident. 

32Dr Pandurangi considered that you would experience a more onerous time in prison when compared to others who do not suffer from such a condition.  He recommended that you be followed up in prison by the prison in-reach mental health service in order to monitor your mental state.

33At the time of your offending, you were on bail in respect of the offences committed by you in December 2016.  I consider this to be an aggravating feature of your conduct. 

34Further, I note that at the time of the collision, you were subject to a community correction order which had been imposed in October 2016 in relation to unrelated offences of theft, unlicensed driving, forging a registration label, possessing a controlled weapon without excuse, fraudulently using a registration level and using an unregistered motor vehicle on a highway.  Hence, your offences were committed whilst you were subject to that community correction order.  I consider that also to be an aggravating feature. 

35A reference from your brother-in-law, Kyle Lane, was tendered.  Mr Lane refers to your history of hard work and your good work ethic.  He notes that your business was doing well until a client went into receivership whilst in debt to you.  He notes that it was about this time that you commenced to show stress and commenced spiralling downwards financially and emotionally.  He considered that it was at this time that you came to rely on drugs.  After some months of resuming work in the plaster industry, it was evidence to him that you had begun to use drugs again and this had unfortunately affected your work so that you could not continue in the plastering business and began, as he put it, to “lose your way”.  He notes that you are currently working with a counsellor and he considers that you are remorseful for your conduct in question.

36No less than 17 persons provided victim impact statements pursuant to Division 1C of the Sentencing Act. These were Exhibits B to S inclusive. Each of these was read in court during your plea hearing either by the maker of that statement or the prosecutor.  Those statements were made by a variety of persons who knew Steven Hartle.  Some were family members or friends, some had worked with Mr Hartle, others were associated with him through his RSL activities. 

37Those statements were informative and deeply moving.  I accept without hesitation that Mr Hartle was a man of exceptional character and a much loved person in the Torquay and Geelong communities.  He had worked in responsible positions for many years in the health industry in Geelong.  He had a settled career and a settled family life.  He had been with his partner for some 38 years before his death.  His death has plainly distressed each of the authors of those statements and no doubt many others in the community.

38Section 5 of the Sentencing Act provides for governing principles concerning sentencing of offenders.  In my view, the principal purposes for which you ought to be sentenced are:

·Firstly, to punish you to an extent and an amount which is just in all of the circumstances.

·Secondly, to deter you and other persons from committing other offences of the same or similar character.

·Thirdly, to manifest a denunciation by the court of the type of conduct in which you engaged.

·Fourthly, to protect the community from you.

39Section 5(2) of the same Act requires me in sentencing you to have regard to a number of matters including:

·The maximum penalties prescribed for the offences committed by you (to which I have previously referred).  Parliament clearly regards these offences as very serious.

·The nature and gravity of the offences which are clearly high. 

·Your culpability and degree of responsibility for the offences.  Your culpability is high.  You were solely responsible for the collision.

·The impact of the offence on any victim of it.

·Any loss, injury or damage resulting directly from the offence.  It goes without saying that your driving caused the death of one person and the serious injury of another.

40I am to take into account whether you pleaded guilty to the offence and if so, the stage of the proceedings in which you did so.  You did plead guilty prior to the committal and are entitled to a discount on your sentence accordingly. 

41I am required to take into account your previous character and I have previously referred to your prior convictions and earlier offending. 

42Your counsel has submitted that there are reasonable prospects for your rehabilitation.  He noted that you are currently in a steady domestic relationship.  You are apparently devoted to your stepchildren.  You do appear to have good support from your current partner who is also your fiancée. 

43Further, it was submitted, and I accept, that you have a good work ethic and that you are likely to find steady employment upon your release from custody.  Your counsel submitted that he did not rely on any aspect of the principles laid down by the Court of Appeal in R v Verdins save for the aspect referred to in paragraph 43 of Dr Pandurangi's report where he indicated that in the long term you would experience prison as more onerous compared with others who do not suffer from your depression and stress conditions.

44Whilst this may be so, I note that you have now been in custody for some 186 days and there is no evidence before me that you have had any specific problems coping with prison life to date.  I do not place significant weight on the remarks of Dr Pandurangi to which I have referred.

45With regard to the nature and gravity of your offending, I make the following comment.  The commission of an offence of culpable driving would virtually always involve the driving of a motor vehicle in circumstances which would properly be described as outrageous, reckless and involving obvious danger to others.  This was certainly the case with regard to your driving in the lead-up to the fatal collision on 28 May last year. 

46Your driving involved the following features. 

·Driving at a speed of approximately 100 km/h in a 60 km/h zone when there was at least medium traffic in the vicinity. 

·Secondly, pulling out in an attempt to overtake two cars when you must have been able to observe oncoming traffic.  Conditions were clear and visibility was good. 

·Finally, driving in a manner which plainly endangered the lives of the occupants of the vehicles that you were overtaking and the occupants of the vehicles coming from the opposite direction and your own passengers in your car.  

47There was no suggestion at your plea hearing that you had any reason for driving at an excessive speed or for attempting to overtake when it was unsafe to do so. 

48Many of the authors of the victim impact statements made references to
Mr Hartle's death as being totally preventable.  I agree that it was.  It was indeed fortuitous that there were no further deaths or serious injuries involved.  Both of the passengers in your car in the period leading up to the collision said words to you indicating that they felt in danger as a consequence of the manner of your driving.  Mr McQueen said words to you to the effect of "Don't get me killed".  Ms Johnston stated that she let out a bit of a squeal to indicate that she was not comfortable with your driving and the speed that you were driving.  You chose to ignore them.

49In all of the circumstances, I consider that the nature and gravity of your conduct constituting Charges 1 and 2 was extremely serious.  Your culpability and degree of responsibility for the offences is high. 

50Your counsel conceded that any sentence imposed by me must involve a significant period of incarceration.  There could be no suggestion that this was some isolated or inexplicable behaviour that was out of character.  Barely five months earlier, as I have said, you had driven a motor vehicle in a manner that you had acknowledged was dangerous and that on that occasion, you were driving with a blood alcohol concentration in excess of the prescribed limit, driving whilst disqualified and driving an unregistered motor vehicle.  It is truly astounding that barely five months later you drove in the manner that you did on 28 May 2017. 

51Although you had not been formally convicted in relation to the December 2016 offences, it is clear to me that you had learned nothing from being apprehended for and charged with those earlier offences. 

52Stand up please, Mr Bohr.

53On Charge 1, culpable driving causing Mr Hartle's death, you are convicted and sentenced to eight years' imprisonment.  This will be the base sentence.

54On Charge 2, negligently causing Mr McQueen serious injury, you are convicted and sentenced to two years' imprisonment and I direct that that term be served concurrently with the base sentence.  The same driving led to both of those offences.

55On Charge 3, Mr Bohr, possession of cannabis, you are convicted and fined the sum of $500.  Again, I will note that this will be your fourth conviction for that offence. 

56On the first summary charge of unlicensed driving, you are convicted and sentenced to two months' imprisonment.  I note that this will be your third conviction for this offence.  I direct that one month of that term be served cumulatively to the base sentence.

57On the second summary charge of having a blood sample obtained from you which when analysed showed that a prescribed illicit drug was present in that sample within three hours of driving a motor vehicle, I note that I am not able to sentence you to a term of imprisonment for that offence.  You are convicted of that offence and fined the sum of $1000. 

58It follows that the total effective sentence imposed is imprisonment for a term of eight years and one month.  I direct that you not be eligible for parole until you have served five years and six months of that term. 

59Pursuant to s.28 of the Road Safety Act 1986, I direct that any licence held by you under the provisions of that Act be cancelled and that you be disqualified from obtaining such a licence for a period of seven years, calculated from 28 May 2017.

60Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to an effective sentence of nine years and directed that you not be eligible for parole until you have served six years and six months of that sentence.

61The presence of methylamphetamine and your blood sample taken at the Geelong hospital is likely, in my opinion, to at least partially explain your driving on that occasion. 

62Pursuant to s.89C of the Sentencing Act, I find that the offence was committed - sorry, the offences in Charges 1 and 2 were committed by you whilst you were under the influence of methylamphetamine which caused or contributed to the offences of culpable driving causing death and negligently causing serious injury. 

63Yes, Mr Sharpley, what ancillary orders are sought?

64MR SHARPLEY:  A disposal order in relation to the drugs found in the car, Your Honour, and a forensic sample order.

65HIS HONOUR:  Thank you.  I will make a disposal order in relation to the plastic containers and other items related to the methylamphetamine and cannabis. 

66Yes, Mr Bohr, the Crown also seeks, pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with subdivision 30A of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  This effectively is a sample of your DNA in case it is relevant to anything that occurs in the future.

67COUNSEL:  Your Honour, I have discussed this with my client and he consents to that order.

68HIS HONOUR:  Thank you.  Thanks Mr Bohr.  I make that order having regard to the seriousness of the circumstances of offending and also noting that the order is made by consent.  Nevertheless, notwithstanding your consent, I have to tell you that if come the time you do not consent to the sample being taken, police will be entitled to use reasonable force to take a blood sample from you.  Do you understand that?

69OFFENDER:  (No audible response.)

70HIS HONOUR:  Thank you. 

71MR SHARPLEY:  Your Honour did mention the pre-sentence detention in passing but perhaps it should be formally recorded that 186 days have been served.

72HIS HONOUR:  Yes, I did.  Did I have the right number of days?

73MR SHARPLEY:  Yes, you did, Your Honour.

74HIS HONOUR:  One hundred and eighty-six days in pre-sentence detention and I declare that that be reckoned as time served or at least in part of this sentence imposed today and that that be recorded in the records of the court.  Yes, anything else that I should be aware of?

75COUNSEL:  No, Your Honour.  

76HIS HONOUR:  Yes, thank you.  Mr Bohr may be taken downstairs.  Thank you.  We will just take a short break.  Thank you.

‑ ‑ ‑