Director of Public Prosecutions v Bosman

[2016] VCC 1689

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01619

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BOSMAN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 November 2016
CASE MAY BE CITED AS:	DPP v BOSMAN
MEDIUM NEUTRAL CITATION:	[2016] VCC 1689

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Hayward
For the Accused	Mr G. O'Shea

Pages 1 - 10

 

 

HIS HONOUR: 

1Daniel Antony Bosman, you have pleaded guilty to an indictment charging you with culpable driving on 23 February of 2016, causing the death of Brian Hoskins.  You have also admitted a related summary offence, namely driving a motor vehicle without a licence.

2You have admitted a number of prior court appearances and convictions, which go back to 1995 and reflect a history of drug use, but also a history, at least intermittently, of driving offences, including unlicensed driving, disqualified driving. Those matters reflect a lack of respect for the law, in terms of your driving record.

3The prosecution tendered and read to the court a summary of prosecution opening for plea. Although there was some discussion during the course of the reading of that document about whether there was any dispute from the defence as to the content of the document and the facts, as set out therein, it was ultimately accepted that the facts and matters set out in that document were accurate and an appropriate basis for me to proceed to sentence.

4Cases such as this are always tragic and this is no exception.  The heartfelt victim impact statements that were read to the court reflect the immediate and the ripple effect of conduct of the kind for which I have to pass sentence today.  It may be accepted, I think, that you too have had opportunity to reflect and that you are now remorseful and ashamed of your conduct and feel empathy towards the family and others who mourn the loss of your victim.  So much is frequently the case in situations such as this.

5The prosecution summary of opening was read yesterday.  I am not going to read it again, but I incorporate it in its entirety into these reasons for sentence.  It seems plain to me and I am satisfied beyond reasonable doubt that during the few days, over the weekend and into the Monday, the 22nd February of this year, you were intermittently, at least, involved in a binge of methamphetamine use, with one or more of your associates and that you had very little sleep, or sleep of any quality.

6The expert evidence suggests that that would leave you vulnerable to what is referred to as the rebound effect of coming down from such a binge and was likely to have been a significant cause of your drowsiness and the behaviour that you exhibited immediately after the collision, which led to Mr Hoskins' death.

7I am satisfied beyond reasonable doubt, you were, by the time you got behind the wheel in the journey that led to Mr Hoskins' death, well aware of the risks of what you were doing.  You were well aware that you should not have been behind the wheel of a motor vehicle.  Indeed, you had just had some further methamphetamine at the home in Longwarry that you had driven to and were driving from.

8Quite apart from being an unlicensed driver, you would have known that you are not entitled to drive with any drugs in your system.  You would have known through your experience of Ice that it leads to just the kind of reaction that you were suffering from and would leave you vulnerable to being incapable of driving safely on the road.

9You chose to drive in that condition.  This was not just an isolated or momentary lapse.  Clearly from the evidence, you were driving on the wrong side of the road at a point 400 metres from the point of the collision, or thereabouts.  It cannot be said that you were necessarily on the wrong side of the road throughout the distance between that and the point of collision, but it is reasonably to be inferred that your condition was such that this was not just some momentary lapse during an otherwise uneventful journey.

10The prosecution invited me to sentence on the following basis, that you had voluntarily binged on methamphetamine in the days leading up to the fatal collision, that you rebounded from the effects of that drug following that binge, you drove your car in that state and it was in those circumstances that you caused the death of Mr Hoskins.

11I am of the view that your moral culpability is high.  I would regard this as being in the upper-mid range of offences of this kind, bordering on the serious end of the spectrum of offences of this kind. What perhaps removes you from the highest category of offending of this kind is that there is no evidence that you were speeding, or deliberately engaging in driving that was otherwise a breach of the road rules.  It seems to me that your culpability arises from your deliberate decision to get into a motor vehicle in circumstances where you must have known that you were quite unfit to drive safely.  The consequence, of course, was the death of another human being.

12The maximum penalty for the offence of culpable driving is 20 years' imprisonment.  The maximum term of imprisonment for unlicensed driving is three months.  I am bound to take into account the maximum terms of imprisonment.  I am bound to and of course do, take into account the victim impact statements and the effect, not only on the victims who provided such statements, but the ripple effect upon those associated with Mr Hoskins.

13Turning to matters personal to you, your counsel provided me with an outline of defence submission. I complimented him on the care with which he had put that together.  It sets out eloquently and indeed his whole plea was an eloquent plea on your behalf endeavouring to present a case that I should impose a community correction order, albeit with a term of imprisonment that would be something over two years, taking into account the pre-sentence detention.

14He acknowledged that this was a serious offence. He relied upon your plea of guilty and pointed out the utilitarian benefits, that is, saving the cost of a trial and the time and expense involved in bringing witnesses to court and of course the stress of witnesses having to give evidence in a case such as this.  Not only that, he invited me to conclude that the plea of guilty was consistent with remorse and I have already indicated that I accept that you are genuinely remorseful for your conduct.  You get full credit for your plea of guilty.

15As to your psychological history and your drug abuse history, I received a report from Carla Lechner, which is dated 23 October 2016.  She saw you on 18 October to conduct her examination of you and she sets out, helpfully, a good deal about your background history.  Notably, that you were close to your mother and that you suffered significantly from the passing of your mother when you were 13 years of age. It was at about that time that you commenced using cannabis and then progressed to other drugs.  According to what she says you told her, you began using Ice at 13 years of age as well.  It seems you experimented with a number of other drugs over the years, but that Ice was your drug of choice.  So that your drug history spans something like 26 years.

16It is suggested that this was some kind of self-medication.  That is often said in this court . I simply do not accept that this was purely self-medication.  It seems to me that what you were doing immediately prior to committing this offence was not about self-medication, it was about recreational use of methamphetamine, with your drug taking mates.  There may have been elements of self-medication at various stages of your drug taking career, but I simply do not accept that that is what was occurring in the period immediately prior to the offence having been committed.

17Despite your long-term drug use you have been able to stay out of trouble for significant periods of time and you have been able to work. You have fathered two children, albeit that you have separated from the mother of those children and you seem to be unsure as to whether they are in the care of the local authority in Queensland. More recently you have taken up, or taken up again with Ms Holland, who has two children of her own by another relationship and indeed you were, it seems, back with Ms Holland as your partner at the time of the offence.

18Ms Lechner concluded that there had been times in your life when you had suffered from episodes of major depression. She diagnosed stimulant and cannabis use disorder and that you also had symptoms of an adjustment disorder with depression and anxiety, with some features of post-traumatic stress disorder, such as flashbacks to the accident.  It seems that the adjustment and depression disorder are reactive to the circumstance in which you now find yourself in custody for these serious offences.

19There was some attempt by your counsel to persuade me that some, at least, of the principles arising from the various Court of Appeal decisions in Victoria, in particular, one referred to generally as Verdins applied.  However, in the course of discussion your counsel and I think rightly abandoned the submission that I should apply the Verdins principles.  Rather he invited me to take into account the psychological assessment, to which I have referred as part of the overall picture and the circumstances in which I have to consider sentence.  I have no doubt that you will find your period of incarceration hard.  It seems that you have applied yourself usefully to acquire new skills whilst you have been in custody thus far and whilst it may be that there will be some restriction upon you if you are in protective custody during your period of incarceration, there will be opportunities further to explore new skills and hopefully to address your long-term substance abuse issues.

20I cannot determine what facilities may be and what opportunities may be offered to you within the prison system whilst you are serving your sentence, but there are programs designed to assist people like you with long-term drug issues to deal with their problems, both psychological and directly related to addictions and hopefully you will have the opportunity and take the opportunity to avail yourself of those.

21I note also that the CISP report, which was dated 13 July 2016 suggests that you have expressed a real interest in rehabilitating yourself and I hope that you persist with that view.  Of course, it will be a hard road for you whilst in custody and after you are released from your term of imprisonment ultimately, to deal with those issues, but unless you do, then you will be condemning yourself to a life where you will be in and out of gaol.

22It is unfortunate, I think, that you had an accident, and that you a serious back problem.  That would have, no doubt, interfered with efforts that you have made in the past to rehabilitate yourself and it is unfortunate.  It is also unfortunate that for one reason or another, you did not make better use of the compensation that was given you a few months prior to this offence, perhaps to make some real efforts to seek professional help and to rehabilitate yourself.  It may well be that pressures upon you from associates too, which was aimed apparently at them getting their hands on your compensation or part of it, may have imposed undue pressure upon you. But it would have been open to you to have made better use of that compensation, rather than spending it in the way you did, albeit that there is still some money left.

23It is very hard to assess your prospects of rehabilitation as being anything other than poor at this stage.  Perhaps I should couch that in different terms and say that your prospects of rehabilitation, or my assessment, has to be guarded at this stage.  Efforts that you made in the past have not been successful.  You have relapsed and indeed you relapsed not long before this offending conduct.  I do not think that your prospects of rehabilitation are hopeless, but at the moment, I do not see much cause for great optimism.

24I was referred by your counsel and by the learned prosecutor, Mr Hayward, to a number of cases that have come before the court, to a table of cases where others have been sentenced for culpable driving and submissions were made as to current sentencing practice for offences of this kind.  All of that was very helpful in enabling me to identify the current sentencing practice, but as was conceded by both counsel, each case has to be determined on its own facts. Whilst those other cases may give some guidance, I have got to sentence you on the facts that are peculiar to you and to the circumstances of this offence.

25I was referred to a letter from Michael Heightman dated 11 October 2014 and a letter from Matthew Alan Biggs dated 7 November 2016, as well as to a letter from Terry Holland, your partner.  I have no doubt that there is good in you and that you will get comfort from your religious beliefs and the support that you receive from the Seventh Day Adventist Church.  All of that will ultimately help you through your sentence and when you eventually conclude your sentence.

26I am required to impose a period of disqualification for a minimum period of two years.  I have given consideration to the question as to whether I should extend a period of disqualification from driving beyond the period of imprisonment that you will be required to serve.  I have come to the conclusion that I should do that for a period to impress upon you that you need to reform your views about the road traffic laws.  You have to take your responsibilities more seriously.  You must not, drive whilst you are disqualified and you must adhere to traffic laws, which include not driving whilst you have any illicit drug in your body.

27It is some extra punishment, but it will not be for a period that should interfere greatly with your rehabilitation. I have endeavoured to find a balance between the need to assist your rehabilitation and just punishment and reflecting the need to deter you as an individual from engaging in serious traffic offences in the future.

28You have been in custody now for 262 days. I am sure that you are a very different person now than when you first came into custody. But it is my duty to impose a sentence which denounces your conduct, which punishes you adequately and which has the capacity to deter you from engaging in conduct of this kind in the future and most importantly, has the capacity to deter others.  Any life lost in circumstances that are preventable is a tragedy and it is necessary that the courts to play their part in endeavouring to ensure that people do not drive in circumstances where they are not capable of driving safely and putting people's lives in danger.

29I also must take into account your prospects of rehabilitation and to facilitate that as far as I reasonably can.  I think that there is force in your counsel's submission that some supervision and help will be needed when you are released and that it seems to me that a period, a substantial period, on parole, assuming you qualify for parole, will assist you with that.

30I am now ready to impose sentence upon you.  Would you please stand?  Daniel Antony Bosman, for the offence of culpable driving, to which you pleaded guilty, I convict you and sentence you to imprisonment for a period of seven years and six months.  For the offence of unlicensed driving, I convict you and sentence you to imprisonment for one month.  That will run concurrently.  So the total effective sentence will be seven years and six months' imprisonment and I order that you serve a period of five years before you become eligible for parole.

31But for your pleas of guilty, I would have sentenced you to imprisonment for a period of ten years, with a non-parole period of seven years.  I declare 260 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from that sentence.  Am I right about the 262?

32MR O'SHEA:  Two sixty.  I think Your Honour said 260, but 262 would be correct.

33HIS HONOUR:  Yes, I meant to say 262 ‑ ‑ ‑

34MR O'SHEA:  Yes Your Honour.

35HIS HONOUR:  ‑ ‑ ‑ but 262 it is days pre-sentence detention and that will be deducted administratively from the period that you will actually have to serve and I order that that fact be noted in the records of the court.  I make the order for the provision of a forensic sample, scraping from the inside of your mouth in accordance with the draft, which I have been provided.  During your sentence you will be approached by an authorised officer and asked to provide a scraping from the inside of your mouth.  If you do that, then that is the end of the matter.  If you refuse or fail, when requested to provide a sample in that way, the officer will be authorised to take blood and may use reasonable force.  I am sure you will not put them to that trouble.  Are there any other orders I need make?

36MR O'SHEA:  The licence disqualification period.

37HIS HONOUR:  Yes, thank you and I disqualify you from, or I cancel, any licences you have, disqualify you from driving for a period of five years and that will commence today.  So that there will be a period of 262 days, I guess, that you will be under that disqualification when you complete your sentence, assuming you get parole at the earliest reasonable opportunity.  All right, yes, thank you.

38MR O'SHEA:  If I might just raise one custody management issue ‑ ‑ ‑

39HIS HONOUR:  Oh, yes.

40MR O'SHEA:  ‑ ‑ ‑ sorry, Your Honour.

41HIS HONOUR:  Yes.  Just, wait - wait ‑ ‑ ‑

42MR O'SHEA:  Sorry.

43HIS HONOUR:  Sorry.

44MR O'SHEA:  Just if it might be noted, in the report of Ms Lechner, she notes that Mr Bosman has been denied access to his antidepressant medication Avanza since he's been in custody ‑ ‑ ‑

45HIS HONOUR:  Right.

46MR O'SHEA:  ‑ ‑ ‑ despite that recommendation and appearance at the committal mention.

47HIS HONOUR:  Well, look, would you like - like us to make a custody management note?

48MR O'SHEA:  If it please Your Honour.  A custody management order that he be assessed by a medical practitioner and that appropriate medical prescriptions be made.

49HIS HONOUR:  Yes, all right.  Well, I think appropriate treatment ‑ ‑ ‑

50MR O'SHEA:  Appropriate treatment, yes.

51HIS HONOUR:  Appropriate treatment, yes.  All right, well, we'll make that note on the - perhaps you can ensure that you're happy with the notice being made on the - on the document?

52MR O'SHEA:  Yes.

53HIS HONOUR:  When I rise you can discuss it with my associate.

54MR O'SHEA:  Thank you.

55HIS HONOUR:  Yes, all right.  Yes, thank you.

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