Director of Public Prosecutions v Booth, Alexander Shane
[2013] VCC 757
•3 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00308
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER SHANE BOOTH |
---
JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF SENTENCE: | 3 June 2013 | |
CASE MAY BE CITED AS: | DPP v Booth, Alexander Shane | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 757 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Tinney (Plea) Mr S. Kenna (Sentence) | OPP |
| For the Accused | Mr J. Bushby | Duffy & Simon |
HIS HONOUR:
1 Alexander Booth, you have pleaded guilty to one charge of culpable driving. The maximum penalty for this offence is 20 years’ imprisonment.
2 The facts that support the charge are set out in the summary of prosecution opening that was read aloud in court and tendered as Exhibit C on the plea. The specific event that brought about the death of your friend, Lee Davy, can be simply described. Immediately prior to 5.40 am on 15 January 2012, you were driving Lee Davy’s utility south along McGregors Road, Pakenham, at a minimum speed of 151 kilometres per hour when you lost control of the vehicle, it yawed and left the road to the west. The vehicle continued to travel in a southerly direction, it sideswiped a tree, which seriously damaged the driver’s side of the vehicle. Thereafter, it slammed into a concrete electricity pole. The passenger door of the utility absorbed all the impact force and the vehicle rotated around the pole coming to rest facing south. Your friend died at the scene from his injuries.
3 At the time of the collision you were about three weeks short of your nineteenth birthday. You were a probationary driver and prohibited from driving with any alcohol in your body. As it happens, your blood alcohol reading was 0.12 per centum.
4 Normally, a brief summary of the facts immediately referrable to the offence is sufficient to describe the circumstances of the offending. In your case this is not so.
5 On the evening prior to Lee Davy’s death, he and you were out together. The pair of you went a party at Koo Wee Rup at about 11.45 pm. There, according to one of the witnesses, you both drank between five and ten beers. From the party you travelled as passengers to a friend’s house where a fortieth birthday was being celebrated. You arrived there some time after 1.45 am. You were observed at this place to fall out of a chair twice. You left the party and travelled to a service station and then on to a friend’s house, who is referred in the materials to as “Jabber”.
6 At Jabber’s house you and the deceased were seen to pour beer over one another and chase one another up the road. You were described as “beginning to get out of control”.
7 You left Jabber’s house and travelled again as a passenger to McDonalds at Pakenham, arriving there at about 3 am. You left there and travelled to another friend’s house, you sitting on the deceased’s lap while another young man drove the deceased’s utility.
8 On arrival at your friend’s house you immediately got into the driver’s seat of the utility. Your friend tried in vain to persuade the deceased to stay at his house. You drove away from that place with the deceased.
9 At 3.15 am you were observed by police in Pakenham driving at an excessive speed. The police tried to intercept you but you eluded them and attained speeds of around 200 kilometres per hour in order to do so. The police stopped their pursuit and they broadcast a description of the utility over the police radio net.
10 Having escaped from the police you did not think better of things and go home.
11 Shortly after your escape, a friend sent the deceased a text that read, “Youse are dicks, don’t crash”. The deceased replied, “We’ve just outrun the cops”.
12 You drove to Costello’s nightclub car park to hide. There you met and spoke to two young women. You told them about your escape from the police. They told you that you should leave the utility in the car park and take a cab home. The girls even offered you money for the cab fare. You refused their offer. They then enquired of you whether there was anyone in Berwick that you knew so that they could drive you there to stay the night, but the deceased did not want to leave his utility in the car park. You are described as driving away from Costello’s “stupidly”.
13 Witnesses, Todd Parker and Dalton Hoeksema, deposed to you attending at about 5 am at “Mat’s” place. You told Hoeksema that you had just been chased by the cops and that you got away from them by driving the deceased’s car really fast. Whilst there, the deceased said that he wanted to go and get some “maccas”. The witness Parker offered to give you a lift, because the deceased had been drinking, but you said no and together with the deceased you drove away from Mat’s place.
14 At about 5.20 am the police who had observed you earlier in the morning saw you again, this time in John Street, Pakenham. Again the police pursued you but you evaded them once more.
15 It is in this context that Lee Davy was killed. Your offending is a serious example of the offence of culpable driving, which is a species of manslaughter.
16 You drove a motor vehicle when you were under the influence of alcohol to such an extent as to be incapable of having proper control of that motor vehicle. You did so in circumstances where you were prohibited from having any alcohol in your body. You drove at high speed to avoid the police. When offered money for a cab fare home you decided to drive. Additionally, when offered a lift to Berwick that offer was refused. When offered a lift to McDonalds, you decided to drive. You evaded police for a second time. You chose for reasons best known to yourself, to travel south along McGregors Road, an unsealed road, at breakneck speed with the inevitable result. One way or another you were put on notice more than once not to drive yet you persisted in doing so.
17 The consequences of your actions on Lee Davy’s family are profound and are eloquently described in the Victim Impact Statement, Exhibit D on the plea. His parents bear you no animosity but rather are compassionate and understanding of your predicament
18 Tendered on your behalf on the plea was Exhibit 1, a bundle of medical and psychological reports; Exhibit 2, an employment history; Exhibit 3, a biography prepared by your father; Exhibit 4, a bundle of references; and, Exhibit 5, a psychiatric report in respect of your mother. I have read each of these documents with care. It is not only Lee Davy’s family that has suffered as a result of your actions but you and your family as well, particularly your mother whose mental health has deteriorated as a result of the stressors acting on her as a consequence of your conduct. It was submitted on your behalf that the deterioration in your mother’s mental health amounted to exceptional circumstances and so was a factor that would independently operate to mitigate punishment. Sad as the position of your mother is, it cannot amount to exceptional circumstances. She is being medicated appropriately and is coping with the unpleasant truth that you will be sentenced to a term of imprisonment .
19 You are young, as is far too often the situation with people charged with culpable driving. You are without conviction. You are in employment. You have your entire adult life ahead of you and inevitably a substantial period of freedom that is associated with the bloom of youth will be taken away from you.
20 You have a loving family who have supported you all your life and will continue to support you in the future. You grew up in the Pakenham area, your father is a project engineer and your mother is a veterinarian. You have one older and one younger sister. Your older sister is psychiatrically unwell, suffering from a serious eating disorder that was diagnosed in 2007 when you were about 13 and which appears to have impacted upon the entire family.
21 At nine years of age your behaviour at home and school was such as to cause your parents to consult a paediatrician, Dr Smith. Dr Smith prescribed you Ritalin, which had the desired therapeutic effect on you. Your behaviour improved and this treatment was complimented by a change of school. You went to Haileybury College where you excelled.
22 You were described by your father as “a hands on person” and this characteristic was evident in you from an early age. You were a member of the cubs and scouts. In your middle years at school you found that academic pursuits held no attraction for you and Years 9 and 10 were spent focussing on outdoor and practical skills. You left school at the end of Year 10 and thereafter took up a plumbing apprenticeship and you were in the last year of your indenture when this fatal motor vehicle collision occurred.
23 At the time of the collision you were living away from home, boarding with your girlfriend’s family. You had lived away from home for almost two years. Unfortunately, in the six months prior to 15 January 2012 your lifestyle involved risk taking that involved the abuse of alcohol and amphetamine-based drugs on an almost weekly basis.
24 The effect of this motor vehicle collision on you has been profound. You could not work for weeks. You abandoned your trade. You broke up with your girlfriend. You became deeply depressed. You had to be hospitalised and treated with anti-depressant and anti-psychotic medication in order to be stabilised. Fortunately, this treatment has been successful and in the second half of last year your life took on some sense of normality with you returning to live with your parents and resuming regular work, this time as a labourer not a tradesman. Your father gave evidence that this work experience has been of benefit to you because you worked with a small group who knew you and are understanding of you and your personal circumstances.
25 You have regularly visited Lee Davy’s grave, there is a photo of him beside your bed. You have tattooed your body with an image in memorial of him.
26 You naturally fear imprisonment. This will be your first time in prison and, but for this tragic event, it is very unlikely that you would ever have seen the inside of a prison cell.
27 Unadvisedly, earlier this year you took yourself off your medication with the inevitable result that your mental state deteriorated. Fortunately, you have resumed taking your medication and you are stable and coping with the situation that you face. Your mental state is a direct result of the collision and its consequence and the knowledge of what awaits you.
28 You are truly remorseful for your conduct and of that I have not a shadow of a doubt. It is evidenced in all the materials upon which your counsel has relied. It is evidenced by your plea of guilty and the time at which it was entered. You are entitled to the full benefit of your plea, including its utilitarian value.
29 During the course of discussion I was referred to DPP v Hill [2012] VSCA 144 at [40] and following. Discussed in those passages are the tensions that exist in balancing the principles that apply to the sentencing of young offenders and the role of general deterrence and denunciation must play in sentences for the offence of culpable driving. (See also the recent cases of DPP v Anderson [2013] VSCA 45 and Hands v The Queen [2013] VSCA 119 in which this issue is discussed in respect of crimes of violence)
30 You have pleaded guilty at the earliest opportunity. You are deeply remorseful. In my view you do not need to be specifically deterred. You are young and without prior conviction. Your prospects for rehabilitation are excellent not the least because you have a loving and supportive family. You will experience all the deprivation and hardship that imprisonment brings in circumstances where without proper medication you psychological state can only be described as fragile. There is a real risk, in my view, that even with medication your psychological state will deteriorate whilst in custody.
31 Your offending is a serious example of the offence of culpable driving. You must be punished, your conduct must be denounced and by this sentence others must be deterred from committing this kind of offence.
32 Taking into account the circumstances of the offending and its effects with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the aims of sentencing in a manner appropriate to you and your offending in respect to the offence of culpable driving I sentence you to six years’ imprisonment and I set a non-parole period of three years’ imprisonment.
33 The non-parole period is the minimum period of imprisonment that I consider the crime that you committed calls for. I am of the opinion that your release on parole will confer an advantage to the community as well as to you and you may claim what mercy may be allowed to you without injustice. (see Bugmy v. The Queen [1990] 169 CLR 525 at pp 530 to 532 )
34 I declare that you have spent 11 days by way of presentence detention not including today.
35 I cancel all licences and permits held by you under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for three years.
36 I find that the offence committed by you was committed while you were under the influence of alcohol which contributed to the offence.
37 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to eight years’ imprisonment with a non-parole period of five and a half years.
38 Remove the prisoner please.
0
3
0