Director of Public Prosecutions v Borg

[2020] VCC 1218

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

AT GEELONG
CRIMINAL JURISDICTION

CR 20-00106

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELL BORG

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	2 July 2020
DATE OF SENTENCE:	2 July 2020
CASE MAY BE CITED AS:	DPP v Borg
MEDIUM NEUTRAL CITATION:	[2020] VCC 1218

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr M. Turner	HBH Legal

HIS HONOUR: 

1Michell Borg, it is often said that driving offences causing a death are the most difficult sentencing cases.  They are always tragic.  However some cases are even more deeply tragic than others and this is one of those cases.

2On 23 January 2019, you, Ms Borg, picked up your two children from where they were living with your mother in Portland.  Your daughter, Ashanti, was aged 16 and your son, Shaun, aged about 11 or 12.

3The arrangement was that the children would be with you all day at your home in Dartmoor, a town in far western Victoria.  In the afternoon, the children were keen on some takeaway food and you drove them and your partner to
Mount Gambier in South Australia where you went to the McDonald's store.

4On the way back, just over the border, your partner said he thought he saw a snake on the side of the road.  Your daughter was keen to see the snake and urged you to turn around and go back.  You agreed.  But as you got near the spot, it became clear that what was there was just a piece of tyre tread. 
You had stopped the car, then you said or decided to head home. 
You commenced to do a U-turn.  You thought you had checked behind you for oncoming traffic but somehow you missed seeing a large semi-trailer approaching.  As you did the U-turn, there was nowhere for the driver of the semi-trailer to go, though he did all he could to avoid your car. 

5I do not need to go into the precise details of where everyone ended up.  Suffice to say, your daughter, Ashanti, was killed instantly.  Your son was injured but survived and has recovered.  You and your partner and the truck driver were not physically injured.

6You have pleaded guilty to one charge of dangerous driving causing death.  Having assessed all the relevant circumstances, I am of the view that the gravity of the offending, and in particular your moral culpability, are particularly low.  This was an example of momentary inattention of not making the observation of the approaching truck or more particularly, not seeing in that split second that it was not safe at all to do the U-turn. Traffic in the early evening on the Princes Highway just near the
Victorian-South Australian border was light but the truck plainly was there to be seen.  Tragically, you did not see it. 

7My assessment that this was an example of the crime of dangerous driving causing death at the lowest end was in accord with the very fair approach taken by the prosecutor, Mr Moore, on instructions from a senior Crown prosecutor.

8Up until recently, examples of this sad offence which involved momentary inattention have seen non-custodial sentences imposed, even where multiple deaths occur, DPP v Nicholson[1] and DPP v Calf[2] are very recent examples from this court, DPP v Borg[3] is an older example from the Court of Appeal.

[1] 2020 VCC 436

[2] 2020 VCC 353

[3] 2016 VSCA 53

9The Court of Appeal decision in Bell v The Queen[4], involving a single fatality, made it plain that where moral culpability was low due to inattention, a community corrections order could be justly imposed.  As with Bell and the other cases mentioned, your driving was not attended by any other aggravating or concerning conduct.  You were not speeding or distracted by mobile phones.  You did not break any road rule like going through a stop sign.  Your driving was not impeded or affected in any way by alcohol or drugs or fatigue.  It was no more and no less than a momentary, tragic misjudgement.

[4] 2018 VSCA 281

10You are like the accused in those cases that I have mentioned, that is someone of good character with no evidence of anything but a responsible driving history.  Though in your case, you were relatively inexperienced, being on the second stage of your P-plates.

11But unlike all those other cases mentioned, you have endured the deep and searing sadness of causing the death of your own much loved, bright, vibrant teenage daughter.  I will say more of the impact on you of that shortly.

12All this is a long introduction to the current sentencing dilemma I now face.  Unlike those cases that I have mentioned, you now confront changes to the Sentencing Act which severely limit my sentencing discretion.  Dangerous driving causing death is now defined as a Category 2 offence.  The effect of that is that a term of imprisonment is required unless very limited criteria are satisfied.

13The relevant but complex provisions in the Sentencing Act read as follows, s.5(2H):

'In sentencing an offender for a Category 2 offence, the court must make an order under Division 2 of Part 3 other than a sentence of imprisonment imposed in addition to the making of a community corrections order in accordance with s.44.'

14Before moving on, I point out in simple terms that what I have just stated in fact means that the court must make an order imposing imprisonment and nothing else. The statute goes on relevantly for this case:

'Unless

…(c) the offender proves on the balance of probabilities that

…(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or

…(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 Part 3, that is not a sentence imposed in addition to making a community corrections order in accordance with s.44.'

15Subsection 2HC goes on to give further substance to the concepts of substantial and compelling.  It says:

'In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court (a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s.5(1); and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to the offender's previous good character other than the absence of previous convictions or findings of guilty, or an early plea of guilty or the prospects of rehabilitation or parity with other sentences.'

16Subsection 2I reads:

'In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to (a) the Parliament's intention that in sentencing an offender for a Category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s.44) should ordinarily be made; and (b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'

17The initial submissions filed by your counsel made no reference to these provisions.  Once this gap was pointed out, your solicitor provided supplementary submissions contending that principally, s.5(2HC)(ii) was established by reason of the evidence of your impaired mental functioning being your chronic and complex Post-Traumatic Stress Disorder. 
The secondary submission was the circumstances satisfied s.5(2H)(e), that is there were “substantial and compelling reasons that were exceptional and rare”.

18The prosecution submissions in this regard were notable again for the fairness and thoroughness in how all the circumstances were analysed. 
The prosecution submitted that the criteria in subsection (e) could be seen by the court as made out by reason of a combination of factors, being: one,  the objective seriousness was at or close to the very bottom of the range and two, the extra curial punishment involved in taking your own child's life was extreme and three, that to an extent, the unprecedented circumstances of the COVID-19 pandemic, made gaol such a different and harsher penalty for you as an indigenous woman.

19Subsequent to the plea hearing, further psychological material has been served and tendered.  This material significantly fortifies the submissions relating to your impaired mental functioning.  The prosecution now concede that your impaired mental functioning too is a proper basis for the court to sentence you other than to a term of imprisonment.

20Although the parties were in agreement or at least not in dispute that I could find the criteria set out in s.5(2H) as being made out on one or both bases, the central question for the court remains whether the plainly and deliberately high hurdle for avoiding gaol has been overcome. An analysis of that question involves considering all the relevant circumstances and the nature and extent of the impact of this tragedy on your mental health.

21Before expanding on those matters, I should say that by applying the well accepted principles of individualised sentencing as enunciated by the High Court in Dalgliesh[5], and other sentencing cases in the High Court such as Bugmy v The Queen[6], Munda v The State of Western Australia[7] and Markarian[8],

[5] 2017 HCA 41

[6] 2013 HCA 37

[7] 2013 HCA 38

[8] 2005 HCA 25

I would have comfortably concluded that for this example of the always serious crime of dangerous driving causing death, a non-custodial sentence was the just and appropriate sentence.  In my view, without the statutory obligation now required to impose imprisonment on you for causing the death of your own daughter in the way that it all happened on that day would have been a disproportionate penalty bordering on cruel.

22However, putting to one side what I would have done before the changes in the law, I must now imposed imprisonment unless the exempting circumstances set out in the Act are established.

23After your plea was made on 27 May 2020, the Court of Appeal published reasons in Farmer v Director of Public Prosecutions[9]. Tthat case appears to be the first appellate decision to consider the provisions of s.5(2H)(e) as they now are including the words exceptional and rare which were added to the statute in October 2018.

[9] 2020 VSCA 140 2 June 2020

24Aided by the analysis in that case, I first examined the circumstances here as to whether they satisfy s.5(2H)(e). In Farmer, the Court of Appeal made clear that the provisions of s.5(2H) establish:

…. A very high hurdle that will not often be surmounted. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment, drug treatment or detention in a Youth Justice Centre or residential centre. Importantly, community corrections orders or combined CCO and a term of imprisonment under s.44 are not available. Many cases, given the type of offences within Category 2, a term of imprisonment will be inevitable. In some cases, the operation of s.5(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 particular so for young offenders. To a degree, (2H)(e) guards against the risk of injustice but the stringency of the test cannot be avoided.

'Within the bounds of reasonableness, whether in combination the applicant's circumstances amounted to "substantial and compelling circumstances" that are "exceptional and rare" was for the judge to determine.

'The judge was correct in concluding that a young offender who will be vulnerable in custody and who suffers from anxiety but who has committed a very serious offence is not rare or unforeseen.  Generically, the factors relied on by the applicant are often seen.

'However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied.'[10]

[10] [52]-[53]

25The Court's analysis made clear that a substantial and compelling circumstances that are exceptional and rare means that the run of the mill or a typical set of circumstances will not suffice.  However, a combination of factors, some perhaps common enough and some that are not common can meet the stringent test.  A critical factor in Farmer's case was an unusual personal attribute, a physical disfigurement that had affected the accused's life to that point and would make him particularly vulnerable in custody. 

[11] [60]

That physical problem of alopecia, that is his hair dropped out, had caused mental health problems that in turn were part of the explanation for him being involved in a frightening armed robbery in company.  This connection significantly reduced his moral culpability.  The Court of Appeal concluded that with a reduced moral culpability, the accused “was to be judged - and punished - much less harshly”[11] than a person with a level of moral culpability that was not appropriately reduced.

26It can be seen that a lower moral culpability for a Category 2 offence and the circumstances that render the moral culpability lower would or could be an important contributor to a conglomeration of factors that satisfy the criteria of substantial and compelling, rare and exceptional.

27Here in this case, there is such a low moral culpability that combines with the crushing sense of grief and guilt that you, Ms Borg, are to be 'judged and punished less harshly’ than those without this very low level of moral culpability who do not also in combination have this intense level of non-curial punishment, being the crushing burden of causing the death of your teenage daughter.

28In my view, Farmer operates to permit that on a close analysis of the personal circumstances of an accused and their level of lower moral culpability, the criteria set out in s.5(2H)(e) is established. It is not to the point to say that it is run of the mill in a dangerous driving causing death, that an offender will feel guilt and remorse. What is needed as a rigorous analysis of the circumstances such that in this case, the depth or degree of this common feature of grief and the very low level or degree of moral culpability make this case a rare and exceptional one and not the run of the mill case.

29Another factor that adds to all this and has aspects that take it well out of the ordinary, run of the mill sort of case and into the truly rare and exceptional, is the intervening event of the COVID-19 global pandemic.  As a consequence of this highly infectious and potentially fatal disease, the prison authorities have necessarily taken very significant steps to prevent an outbreak in the close confines of a prison.  Thus, conditions for those incarcerated are unprecedently harsh.  There are no face to face visits.  There is a strict 14 day quarantine isolation period for that first very difficult time of a prisoner being taken into custody.  This is especially pronounced for someone who has never been in prison before and never expected to be.  Counselling and psychological assessments and treatment are restricted and impeded and in particular, face to face assessments and treatment.

30All this makes the expected penalty for a Category 2 offence of imprisonment so much harsher than before the pandemic.  This is a set of factors taking this case outside the ordinary to the exceptional and rare and the more so because of your own circumstances as an indigenous woman makes you more vulnerable, as does the distance that you will be from family and friends.

31In my analysis of all the factors to be considered with respect to whether there are substantial and compelling circumstances that are exceptional and rare,
I have considered and applied or had regard to what is set out in s.5(2HC) and s.5(2I) regarding that more weight and primacy is to be given to general deterrence and denunciation, less to your personal circumstances and no regard to your good character, early plea, and prospects of rehabilitation and parity.

32I have had had regard to Parliament's intent that imprisonment should ordinarily be imposed but as I have set out, the cumulative impact could, and in this case, does justify a departure from a custodial sentence.

33These matters intersect or overlap with the factors and matters that are relevant to sub-s.(2H)(c)(ii), and I turn to the consideration of that and whether your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

34Here, to put your fragile mental state in its full context, I need to touch on general aspects of your personal circumstances, which of course are, in and of themselves, relevant to sentencing.

35You are a 43 year old indigenous woman.  I have little information regarding your upbringing but that in and of itself is telling as your treating psychologist wrote in his first report:

'We now know that Ms Borg is "frozen and unable to handle issues relating to the death of her daughter and unable to navigate pathways relating to obtaining treatment for herself.  She simply blocks it all out."  After the first face to face treatment, there as further treatment and evaluation over the months of January, February, March, April that was done in via telehealth.'

36You were unable to tolerate, he says, a normal 50 minute session so it was always split up and negotiated and often finished early.

37He went on to say in respect of your presentation that you attempted to cooperate  but presented as 'zoned out.'  He says:

'She was neatly dressed and groomed but spoke little and in a monotone and clearly had low expectations of receiving meaningful assistance in the psychologist sessions.'

38As I said, you politely withdrew, and it became apparent you were not coming back. However, with assistance, you were able to negotiate with the proactive efforts of your solicitors to continue treatment via telehealth.

39He went on in respect of your family history:

'It was impossible to obtain a comprehensive history but it is reported that Ms Borg has suffered sexual and domestic violence throughout her life.  She is an indigenous woman but does not appear to draw much strength from heritage or community involvement.'

40What is clear is that essentially you closed up when it came to any psychological assistance and assessments.  The report of your treating psychologist made it clear that with what he had to go on, he sees your mental health as very damaged and likely to remain fragile.  He assessed your levels of depression and anxiety at very concerning levels.  Indeed, what came from the test was an invalid outcome, although he insightfully pointed out that there is difficulty in determining whether it was invalid or whether it was seen as exaggeration because the levels were so high in respect of your depression and anxiety.  In the end, his conclusion was that you are suffering extreme levels of psychological impact resulting in debilitating, chronic, complex Post-Traumatic Stress Disorder.  All this is understandable. 

The grief and guilt that flows from you being responsible for your momentary inattention to the loss of your beloved daughter is all consuming. 

41Your intense remorse is obvious and genuine.  The account given to your psychologist of you going to the site of the tragedy, the side of the road and other places on the first anniversary of the death of your daughter was truly heart rendering.  It goes without saying you will never be the same. 
The punishment you have suffered already and daily is acute. I cannot and will not ignore that.

42The question is whether your impaired mental functioning, being a chronic and intense complex Post-Traumatic Stress Disorder satisfies the criteria set out in s.5(2H)(c)(ii) permitting me to impose a sentence other than immediate imprisonment.

43The first matter to establish is that your impaired mental functioning of the chronic complex Post-Traumatic Stress Disorder is a mental illness as required and defined in the Mental Health Act. The prosecution conceded that your Post-Traumatic Stress Disorder did satisfy the definition. Further, in a supplementary report, your psychologist made it clear that your diagnosis of chronic complex Post-Traumatic Stress Disorder was a mental illness as defined. I am well satisfied to the required standards that your chronic complex Post-Traumatic Stress Disorder is an impaired mental function as required by s.5(2H) of the Act.

44I am further satisfied that on the balance of probabilities that the level or intensity or degree or whatever is the appropriate term to establish the relative seriousness of your form of chronic complex Post-Traumatic Stress Disorder is very high indeed.  It is debilitating and all consuming.  The psychologist report and the evidence, makes it clear that Post-Traumatic Stress Disorder is a mental illness that involves significant recurring symptoms caused by severe life threatening trauma, they can be flashbacks, reliving, ruminating and being frozen in the moment.  The symptoms involve or may involve inability to control emotions, suicidal ideation, reduced self-esteem, disturbance in relationships, mood, sleep, going into self-isolation physically and emotionally, hypervigilance, debilitating fear.

45With chronic Post-Traumatic Stress Disorder, these symptoms will be more severe, prolonged and long term.  What is needed to manage or abate symptoms is the intensive support from professionals and also, and especially, from family and friends.  What was made clear in the report was that the type of support and treatment needed would not be available in prison, especially as you would be so distant from family and friends in the far west of Victoria.  This important absence has been made even more acute by reason of the COVID-19 pandemic, ending visits to prisoners and respecting what psychological and counselling services can be made available, in particular face to face treatment and counselling.

46The psychologist concluded that the range of matters that would be your lot if imprisoned would, in combination, result in an 'intolerable burden for a sufferer of complex chronic Post-Traumatic Stress Disorder.'

47Thus, I am satisfied on the balance of probabilities, indeed more than that, that by reason of your impaired mental functioning you would be subject to substantial and materially greater than the ordinary burden of imprisonment, in short s.5(2H)(c)(iii) is made out permitting a sentence other than one of imprisonment.

48I add to that compelling conclusion based on the expert evidence that your sister, in her very helpful letter, made it clear that, as she said, on some days and she is talking of course when you are at liberty and not in prison, on some days she is very worried for your mental health.  She says:

'Every day is a battle for my sister, Michell.  However, she fights every day to keep moving forward even though every breath without Ashanti here hurts.'

49Your sister outlined in her letter some of the more acute and intensely bleak moments of you having to identify your daughter at the morgue and the difficulties of the funeral.  I am told your parents are supportive of you, so too your partner Jason Humphreys.  You see your own son Shaun every day and he, having lost his sister at the age of 11 or 12 is reliant on you as well his grandparents for important stability at this time.  You would be deeply concerned for him were you imprisoned and he was left without you. 
This would add to the burden of imprisonment upon you.

50Having concluded that both s.5(2H)(c)(ii) and sub-s.(e) are satisfied, I am able to put well back into the mix your deep and ongoing remorse, your early plea of guilty, your previous good character and subject to you coming to grips with your mental health problems, your prospects of resuming a lawful life, which I consider are solid prospects.  These matters, together with all the factors relating to your low moral culpability and the fact that because of your impaired mental functioning, I would moderate the weight to be given to general deterrence, what results is that the just and appropriate sentence is a community corrections order.

51Such a sentence is appropriately punitive while allowing or facilitating for your rehabilitation.  It does also operate as a deterrent.  All these matters were made clear in the important guideline decision of Boulton v The Queen[12]. 

[12] 2014 VSCA 342

Yours is an unusual case and ought not be seen as setting a benchmark for cases where a parent, by their dangerous driving, causes the death of a child and is thereafter traumatised.  It is the combination of all the unique circumstances and the low moral culpability that allow, in the interests of justice, for a sentence other than immediate imprisonment.

52Thus, for committing the crime of dangerous driving causing death, I impose the following penalty, you are with conviction to be placed on a community corrections order of that will go for two years.  You must do unpaid community work, that will be 150 hours.  You must also undergo assessment and treatment for your mental health problems.  All the hours that you do with your mental health are to be counted and subtracted from the unpaid work. 
I did consider some other programs and the like that I read carefully. 
The assessment done by the community corrections order, and I consider those two program conditions, the unpaid work and the mental health to be what is required.

53I am required to deal with your licence.  That is your licence is cancelled and you are disqualified from driving for a period of two years.

54Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed, because it is a Category 2 offence, I would have imposed a penalty of 16 months with a non-parole period of eight months.

55Is there anything else required?

56MR TURNER:  No, Your Honour.

57HIS HONOUR:  Mr Moore?

58MR MOORE:  No, Your Honour.

59HIS HONOUR:  Thank you.  What needs to happen, Ms Borg, is I need to just go through some matters with you so that you understand what the community corrections order is from beginning to end and also that you consent to it.  So if you would again come back on the screen by your solicitor indicating you have heard what I have just said and we will go through it.

60VOICE:  Your Honour, Thank you.

61HIS HONOUR:  Thank you.  Now, Ms Borg, everyone who is put on a community corrections order has the standard set of conditions.  The first of those are you must not commit an offence for which you could be imprisoned during the time that the order is in force.  So for the two years, you have just got to stay completely and utterly out of trouble.  I have got no doubt you can do that, but I emphasise that.  Should you commit an offence, then you will return back before me and I will have a different attitude to how this should unfold.

62You have got to cooperate with the Office of Corrections.  So you have got to report to the Office of Corrections within two clear working days.  You can do that by phone.  They will make arrangements for that to occur if you get in touch with them over the phone.

63You have to accept visits from the Office of Corrections.  You have also got to tell them if you change your job or your address.  So you have just got to keep them informed.

64You have also got to get permission from them before you leave Victoria, before you go over the border.  That is relevant for you in respect of living where you are but there are of course the complications that we know in respect of the pandemic at the moment.  However, be in touch with them about any need for you to go into South Australia for any particular reason and you have got to abide by any directions that they give to you.

65In addition to those conditions, as I said, you have to do unpaid work for 150 hours.  They will work out how that is to be done in the circumstances of the pandemic.  Just stay in touch with them about that.  But that has to be done.  That is not voluntary.

66Also, you must continue with assessment and treatment for your mental health.  Now, that will involve perhaps dovetailing in with whatever treatment and counselling you are getting at the moment but putting aside the criminal justice system and your involvement in this case, you do need help, Ms Borg, and people will provide it to you.  They will do it sensitively and you should take it up and work through this with those that you know, your sister, your mother and father, and others that have been through the sort of trauma that you have, the groups that there are for that.  So do not put that one side. 
So those are the conditions.

67Now, having heard that, come off mute if you are not already, I do not think you are on mute, but do you consent to that community corrections order?

68OFFENDER:  Yes, Your Honour.

69HIS HONOUR:  Thank you.  You will get a document, your solicitor will with various things set out that will outline the conditions, read those carefully.

70All right, do not drive at all.  I know that you have gone off that but if you try and drive in the next two years, that would be an offence punishable by imprisonment and that you would find yourself back before me, do not doubt that.  All right.

71The documents will be sent to the parties as soon as they are signed.  Is there anything else required?

72MR MOORE:  No, Your Honour.

73MR TURNER:  No, Your Honour.

74HIS HONOUR:  Thank you very much to the prosecution first, Mr Moore, and your instructor and the efforts of the Chief Crown Prosecutor who took this case very seriously as he should or as the office should and I am grateful for that to receive such a considered approach and submissions in regard to that.  Likewise, Mr Turner, in particular your solicitor who has done a very professional job in difficult circumstances.  I am very grateful to get through, which I indicated from the start, these are the hardest cases for the courts.

75I will now end the link, Mr Turner, you can remain on if you wish to, to speak to your client direct, but of course you can do that by telephone.

76MR TURNER:  I will do that by telephone, Your Honour.

77HIS HONOUR:  Yes, all right.  Well we will end the meeting as it is called or I will leave this hearing, thank you.

78MR TURNER:  If Your Honour pleases.

‑ ‑ ‑