Director of Public Prosecutions v Bowmaker, Joanne
[2012] VCC 2134
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOANNE BOWMAKER |
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JUDGE: | HIS HONOUR JUDGE PILGRIM | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 December 2012 | |
CASE MAY BE CITED AS: | DPP v Bowmaker, Joanne | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2134 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. R. Cordy | Office of Public Prosecutions |
| For the Accused | Mr D. Fordyce |
HIS HONOUR:
1 Remain seated, Mrs Bowmaker, until I tell you otherwise.
2
Mrs Bowmaker, you have pleaded guilty to one count of dangerous driving causing death. You heard the learned Crown prosecutor, it was then
Mr Champion, tell this court that the maximum sentence that can imposed for this offence is that of 10 years' imprisonment.
3 Further, a mandatory provision within the Sentencing Act fixed by the Parliament says that on conviction there is an attachment on your licence, as with every person charged with this offence, for a minimum period of 18 months. I will say more about that a little later.
4 For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed. In other words, you receive a discounted sentence for having pleaded guilty.
5 It was on Saturday 14 May 2011 at about 10.50 am that you were driving your motor vehicle on the New Dookie Road, Cosgrove when you struck and killed a cyclist, Peggy Allen.
6 Mrs Bowmaker, you were driving your vehicle in a south-westerly direction on the New Dookie Road travelling from Dookie towards Shepparton. At the time you were driving on a slight left-hand curve in the road, or you were heading towards a slight left-hand turn in the road. Your motor vehicle crossed over on to the incorrect side of the road surface and then on to the northwest shoulder of the road. The front offside of your vehicle struck Mrs Allen who was standing with her bicycle.
7 As a result of the impact with the cyclist you then oversteered your vehicle to the left, back across the traffic lanes, with your vehicle leaving the road surface to the southwest and entering a paddock where you came to rest.
8 As a result of the impact the cyclist, Peggy Allen, died at the scene. It is likely that she was killed instantly.
9 Peggy Allen was 60 years of age at the time of the collision, semi-retired, working part-time at a hotel, also volunteering her time at a hospice in Shepparton. She was the mother of two children and a grandmother to one grandchild. She had lost her second husband due to cancer.
10 The cause of her death has been stated as injuries sustained in a motor vehicle collision. The toxicology blood test indicated no drugs or alcohol were present at the time of her death.
11
Mrs Bowmaker, I quote directly from the prosecution opening where
Mr Champion read these words, and I repeat them.
12 "At about 10 am on 14 May Mrs Allen left her home in Broken River Drive, Shepparton, to take a bike ride. She coincidentally met up with three other cyclist who were friends of hers, Sylvio and Marie Fontana, and Ian Chillman. As she rode out of Barwon Court, they just came together, as I said, coincidentally.
13 Together the group rode out of Shepparton with the Dookie township as their intended destination. They rode in formation of two abreast while Sylvio and Peggy Allen leading in the front and Ian and Marie in the back. All were wearing protective riding gear, Mrs Allen wearing black coloured riding shorts, bicycle shoes and a bright fluorescent long-sleeved jacket. That equipment provided good visibility to other motorists.
14 The group of four rode out of Shepparton along Poplar Avenue to Central Avenue, then on old Dookie Road to Pine Lodge Road, then on to New Dookie Road, and they rode in the same formation for a distance of five or six kilometres. Then one of the riders received a tyre puncture. At that point the whole group stopped to allow repairs with the intention to continue their journey once repairs had been effected.
15
Mr Fontana indicated that he had dragged his wife's bike, that was the punctured bike, off the road and had commenced to remove the front wheel with the assistance of Mr Chillman. Mr Fontana said that his wife and
Mrs Allen were standing to the west of Chillman and himself. Fontana says that Mrs Allen was standing on the shoulder of the road to the north of his wife and that they were chatting.
16 Mrs Fontana in her statement says, 'I saw a family sized blue sedan coming around the bend. I saw it veering to the wrong side of the road and heading straight for us. I screamed, and Sylvio, I and I dove further off the road. I instantly knew that Peggy had been hit.'"
17 The prosecution case is that you failed to steer the vehicle around the curve and instead continued to travel in a straight course. Your vehicle crossed over double white lines and across the northeast bound lane and north fog line on the incorrect side of the road, as I have mentioned earlier, where a car should have been travelling when it then entered on to the gravel shoulder. The vehicle collided with Peggy Allen who was standing with her bike.
18 After this impact you then steered your vehicle to the left, as I mentioned earlier, causing it to yaw back across both traffic lanes where it left the road surface, entered into an adjacent paddock, you then steered the vehicle around in a loop before bringing it to a stop facing north in the paddock.
19 You immediately then returned to the scene of the impact. You were heard to be saying over and over that you were very sorry. You were asked if you were using a mobile phone, you replied, "No, I was just distracted."
20 Mrs Bowmaker, police officers who attended spoke with you. You admitted to moving your mobile phone into the console and as you did so you looked away from the road ahead. Your admission was a concession that you had taken your eyes off the road as you were driving at a significant speed, but not exceeding the speed limit.
21 Mrs Bowmaker, you made a similar admission to medical staff at the Goulburn Valley Base Hospital, that is that you were distracted.
22 A blood sample was taken. The result of this test indicated the presence of Fluoxetine. This drug is an anti-depressant and the level indicated on this reading was well within therapeutic range.
23 When interviewed by the investigating police officers you exercised your right to silence as is your right. You did admit to being the driver of the vehicle.
24 Your vehicle, when subjected to mechanical inspection, indicated that no mechanical fault would have caused or contributed to the collision. The reconstruction of accident scenes expert concluded that your vehicle would have been travelling between 85 and 90 kilometres per hour, and as I mentioned earlier that is well within the speed limit.
25 An examination of the appropriate records revealed that no calls or SMS messages were made or received on your mobile phone. Drugs, alcohol, excessive speed or fatigue are not factors in this collision. The weather on the day was fine. The road was dry. Visibility was good and traffic was light.
26
Mrs Bowmaker, you are now aged 48 having been born on 4 March 1964. I quote from the excellent report dated 16 November 2012 provided by
Mr Newton, a well-known forensic and clinical psychologist. He says this:
"Dr Bowmaker is the eldest of four children born to a farming family. Her family operated a farm near the central Victorian town of Dookie, which was viable but not highly profitable. Dr Bowmaker's mother supported the family by working full time as a registered nurse while her father operated the farm. She told me that both parents had worked long hours to provide her and her siblings with opportunities for education and other activities during her early years."
27 Mr Newton goes on to say:
"Dr Bowmaker noted that she had been a rather fragile child physically with a limited capacity for physical exertion. She suffered severe tonsillitis when very young. At age eight Dr Bowmaker suffered significant abdominal injuries when she fell under a trailer while feeding sheep on the family farm.
The combination of these injuries and illnesses led her to experience prominent anxiety during her childhood which has continued to trouble her into adult life."
28 Mrs Bowmaker, you attended the Dookie Primary School before then moving on to secondary college at the Sacred Heart College here in Shepparton for the first three years of secondary schooling.
29 I again quote from Mr Newton's report. He says this:
"She was a precocious student academically and was given additional academic work to extend her from early primary school. While this enhanced her academic life it became the focus of ostracism and teasing form her peers who considered her a book worm and a goody two-shoes."
30 The harassment escalated steadily throughout primary school and reached the point where your mother was forced to intervene when you were assaulted by other students. "These experiences entrenched your experiences with anxiety and undermined her self confidence," says Mr Newton.
31 Mr Newton goes on to say:
"Dr Bowmaker attended Sacred Heart College in Shepparton for the first three years of secondary school. Again she flourished academically but with some exceptions was ostracised and bullied by her peers. She left home to complete her senior secondary schooling at University High School where she flourished obtaining exceptional results and establishing herself in a peer group where she was accepted and well liked."
32 I have empathy for you and your experiences at the hands of bullies, having experienced the same anti-social behaviour because of curly hair.
33 Mrs Bowmaker, you have an outstanding academic career, graduating with honours from the Monash University, Medical Faculty. You then completed advanced training in London completing your fellowship of the Royal Australian College of GPs before you became Deputy Director of Wangaratta Emergency Department since 2008. Before that you had acted in general practice in Benalla.
34 Your contribution to life in your local community through rural medicine is exceptional.
35 Mrs Bowmaker, you married in 1986. Your husband was described by you to Mr Newton as your closest friend and ally. Mr Newton reports, and I quote:
"Dr and Mr Bowmaker have four children aged between 20 and 12. In 1996 the family returned to Dookie in order to be closer to Dr Bowmaker's parents and to provide the children with the benefits of a rural-based childhood. Dr Bowmaker is strongly committed to her children's welfare. She is well aware of the effects of this prosecution upon them and has been keen to insulate them from these pressures to the extent possible.
Dr Bowmaker's second son, Jack, suffers from Crohn's disease. Jack's condition is treated by an experimental medication provided in conjunction with the Royal Children's Hospital. This medication has brought his condition into remission, but he relies upon Dr Bowmaker being able to administer the fortnightly injections that are required."
36 Associate Professor Don Canven in his reference, among other things, says this of you, and I quote him. He speaks of Crohn's disease and says:
"Crohn's disease is a chronic incurable condition affecting the whole of the gastrointestinal system and beyond producing profound effects on all aspects of general health and wellbeing. He has had a protracted course requiring intensive medical management and major abdominal surgery. His mother's love, support and practical care has been immeasurable. Amongst other things, Jack is currently having fortnightly injections of a special medication administered by his mother. Not only is Joanne Bowmaker pivotal in her own family, she is also an extremely valued member of the local broader community and a highly respected, caring and hardworking general practitioner providing much need primary and emergency medical care in a rural and regional setting."
37
There are a further nine references produced to this court by your counsel,
Mr Hill. Mr Hill, in his plea on your behalf, summarised what is contained in those other nine references. He says:
"According to her referees, she is a woman of great integrity, trustworthy, hardworking and dedicated to her profession and to her patients, caring, kind and supportive and respectful of others, a compassionate and responsible member of the community."
38 The referees come from all walks of life within our community. They are at one, when it is said of you that you are a true professional, kind and giving to all. Each referee speaks of the personal devastation you feel not only for your family but for Peggy Allen's family.
39 You have written a letter of apology expressing your sympathy and concern to all within the Allen family. Peggy's mother has graciously responded in the most difficult of circumstances.
40 Mr Newton reports, among other things, and I again quote him:
"Dr Bowmaker is a reserved woman whose natural disposition is to keep her emotions under control and maintain a composed exterior. This tendency has been adaptive in the high pressure professional roles she has occupied, but has become particularly intense since the accident. So great is her sense of responsibility and culpability for her actions that she is reticent to express her own distress to others for fear that it will be taken to imply that she is either seeking to garner sympathy for herself or does not sufficiently respect the suffering of the family of the deceased."
41 Then a little later Newton goes on to say:
"As a result of such considerations, casual observation might lead one to conclude that Dr Bowmaker is less distressed than is in fact the case. Comprehensive psychological assessment indicates that beneath this surface calm she continues to experience symptoms of both depression and anxiety. While she had suffered some chronic anxiety of moderate proportions prior to the accident in May of 2011, that event is currently the primary cause of her distress now."
42 Dr Bowmaker, you have heard the learned prosecutor, Mr Champion, concede the following:
43 (1) That your offending was at the lower end of moral culpability as true it is that this is a genuine case of momentary inattention or misjudgement.
44 (2) As I mentioned earlier, you were not affected by alcohol, drugs or fatigue. You were travelling within the speed limit.
45 (3) As is all too often the case in counts such as this type of offence you were not engaged in conduct which endangered others. Frequently when you hear driving of this manner there is all sorts of irresponsible activity taking place at the time.
46 (4) Your vehicle was roadworthy.
47 (5) You entered a plea of guilty at an early stage of the proceedings. There was no committal held in the Magistrates' Court.
48 (6) Mr Champion also concedes that specific deterrence does not apply in this instance.
49 (7) You have made and continue to make a significant contribution to the community and rural medicine.
50 He does say, of course, and Mr Hill concedes, general deterrence is of the utmost importance, and I have mentioned that again.
51 Mrs Bowmaker, your plea of guilty is an indication of your remorse. Your counsel again on your behalf expresses your remorse to this court. Every referee in the references provided speaks of your remorse, and I quote from Mary Quiltie's reference. She said this:
"I think her compassion and empathy also made it harder for her in the aftermath. After the accident I rang Joanne and she was crying and consumed by guilt. She told me she just wanted to contact the victim's family to tell them how very, very sorry she was and beg their forgiveness. While I understand that Joanne has had no direct contact with the family of the deceased she feels their suffering genuinely."
52 Mr Newton says of your remorse, and I quote him:
"Mrs Bowmaker experiences a profound sense of guilt, shame and remorse as a result of the death of Mrs Allen."
53 Mrs Bowmaker, Mr Newton then reports as to your prospects of rehabilitation.
54 He reports, and I again quote, your rehabilitation relates to health rather than misbehaviour.
"In recovering from these events Dr Bowmaker enjoys the close ongoing support of her husband, extended family, employer and a band of close friends. She has a stable history of engaging in work and community activities. There is no evidence of any antisocial tendencies or other propensities toward acting out or generalised criminal behaviour on her part, and there are no indications of behavioural pathology that would act as potential criminogenic factors to precipitate further offending in her case. Each of these factors is correlated with the lower rates of recidivism. In combination they suggest the risk proposed by Dr Bowmaker would be quite small."
55 I would say it would be absolutely negative. Otherwise I agree with the observations of Mr Newton.
56 Mrs Bowmaker, you have no prior convictions and indeed no prior court appearances.
57 Mr Ian Chillman, one of the cyclists, has filed a victim impact statement. Mr Champion read that victim impact statement into the court transcript. Like any friend or person who witnesses an event such as this, the effect upon this gentleman is profound.
58 Peggy Allen's family have attended at this plea hearing. They too have been profoundly devastated by the loss of daughter, mother, grandmother and friend.
59 I do not know if you have read this morning's paper. I have not written any of this material into my sentencing comments but I feel compelled to mention it. Talk about driving, there is a picture in the Herald-Sun, not that I am trying to sell the paper, but the Herald-Sun of a woman driving at 100 kilometres an hour on the Monash Freeway and reading a novel. I do not know whether you have seen it, but there it is, and there is the picture.
60 The awful ramifications of this accident or tragedy will remain with all those involved forever. If any good may come from this horror it may be that of a reminder of the fundamental necessity to pay constant attention when driving a motor vehicle. This woman was reading a book. Incredible. We must minimise distractions, such as children, radios, CDs, perhaps conversations with passengers and others, and maximise and maintain concentration. Most critically at all the scurge of mobile phones. They must be turned off, and in my view under the seat or in the back in the boot so you cannot get at them. I can rarely find my mobile phone. I loathe them.
61 Would you stand up, please.
62 Dr Bowmaker, I assure you that I have taken into account everything said by Mr Hill on your behalf. I take into account your plea of guilty and of course your prospect of rehabilitation, which is excellent. While specific deterrence, as I mentioned earlier, is of little need in this instance, general deterrence is very much to the fore. One must concentrate when driving. Failing to be vigilant and not alert when driving can lead to terrible results and must be denounced, e.g., that woman in this morning's paper reading while driving. Have a look at it.
63 The Victorian Court of Appeal in DPP v. Oates (2007) VSCA of 1959 said it was accepted in R v Whyte (2002) 55 NSWLR that the offender's moral culpability is reduced where the accident is caused by momentary inattention or misjudgement. Yours was momentary inattention or misjudgement. What do you say about the lady reading the paper? Have a look at it.
64 On Count 1 you will be convicted and sentenced to be imprisoned for a period of 12 months such sentence to be suspended pursuant to s.27 of the Sentencing Act for a period of 12 months.
65 Pursuant to s.89(1) of the Sentencing Act any licence to drive is cancelled. That is a mandatory provision that must be enforced. You are disqualified from driving for the statutory minimum period of 18 months.
66 Pursuant to s.6AAA, had it not been for your plea of guilty, I suspect, I think, I really do not know, it is crystal ball gazing, but I suspect I would have sentenced you to 18 months of imprisonment and suspended 12 months of it had it been a plea of not guilty.
67 Are there any other orders sought, Mr Cordy?
68 MR CORDY: No, Your Honour.
69 HIS HONOUR: You can leave the dock, thank you.
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