Director of Public Prosecutions v Brown

[2016] VCC 877

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-00692

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN BROWN

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2016] VCC 877

REASONS FOR SENTENCE
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Subject: dangerous driving causing death
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr G. Tellerson

HER HONOUR: 

1Hayden Brown, you have pleaded guilty before me to one charge of dangerous driving causing death.  The events which gave rise to this charge occurred in Mildura, some 16 months ago, when you were 19 years old.  The criminal activity, which is the background to this offending, was engaged in by six young men, all in their late teenage years.  You were one of those six, as also was the man who died, Cody Bertalli. 

2A group of about 15 friends had gathered outside the Mildura Homemaker Centre in the evening of 5 February 2015, a Friday night.  Some had motorbikes and others had cars.  You were one of this group.  You and they were accustomed to meet up at this location just to talk and hangout and this I understand was your usual entertainment on a Friday night.

3You were one of the group who had a motorbike.  Cody and three other young men, Mitchell Shaw, Justyn Smith and Dilan Hunt, also had motorcycles with them.  You suggested to them that they have a race with you to see who was the quickest.  You were persistent in that suggestion and they agreed.  You and the other four lined up on the access road with the Centre for the race.  A by-stander, Dylan Sheen, acted as the marshal, dropping his arm as a signal for the start of the race. 

4So at that stage, as I have said, there were six young men, five of them mounted on motorbikes, and one acting as a race marshal, all willingly engaged in criminal activity.  That is, at that point, comprising the extremely dangerous act of attempting to stage and participate in a high-speed race on a narrow access road within the shopping centre precinct.

5I need to describe that access road in more detail.  It ran parallel with the shops, opening onto various carparking areas which service the shopping centre precinct.  It was dotted with pedestrian crossings.  The speed limit for the entire area was the default speed of 50 km an hour, although I note that in your record of interview you told the police you thought it must have been 40 km an hour.

6At that time of night, although the shops were shut, there was a significant amount of pedestrians about, at least your group of 15 or so people, together with parked cars.  There was also the potential for car and foot traffic from the United Service Station, which is a 24 hour station and which was situated about 200 metres away, at the opposite end of the access road, on which you planned to start the race.

7You and Bertalli had the most powerful and fastest bikes.  His was, if anything, slightly more powerful than yours.  From the start of the race, you were both in the lead.  The other three participants accelerated slowly and dropped out halfway through.  Bertalli continued, until reaching the last of five pedestrian crossings which intersected that access road.  You drove past that last crossing and up to the service station where you turned around.

8You all then returned to the starting position designated by Sheen for a second race.  All five of your appeared to have lined up again and Sheen once again gave a starting signal.  You then raced down the access road, again towards the service station.  Once again, Hunt and Smith accelerated slowly and appeared to have dropped out shortly after the start.  Shaw had a dirt bike of lesser capacity than you two.  He seems to have stayed in the race, but he was well behind you and Bertalli.  Both you and Bertalli were well in the lead all throughout that second race. 

9I stop at that point to identify the criminal activity in which I say all of you six were at that moment engaged.  You were all engaged in staging a road race, comprising five competitors on a narrow access road.  There were pedestrians in the vicinity and other cars.  That activity was inherently dangerous and very stupid.

10For their parts in the race, as I have described it so far, both Hunt and Smith have since been dealt with for engaging in a road race and careless driving.

11Shaw, having continued in that race when Hunt and Smith desisted, was charged with and pleaded guilty to reckless conduct endangering serious injury, a charge which is complete without any injury having been caused.  Sheen, the race marshal, was also charged with and pleaded guilty to conducting a speed race. 

12Had that second race ended at that point, without incident, you and Bertalli may well also have been charged with similar offences.  However, the race did not end there.  You and Bertalli continued to race together, up the road, towards the service station.  The access road that you were using is virtually straight for a significant distance, but at the end, it curves to the right.  You and Bertalli appeared to have entered that curve either together or with you perhaps slightly ahead of Bertalli. 

13I stress that at that point, the driving of each of you was extraordinarily dangerous.  You estimated in your record of interview that you were travelling at 90 to 95 km an hour as you entered the curve.  Bertalli would have been at a similar speed.  One witness describes your bikes as being millimetres apart from each other at this time.  You were thus riding either in tandem or with Bertalli slightly behind you or astern of you as your counsel put it.  At 90 to 95 km an hour, riding closely together and each concentrating on the race.

14You had almost reached the service station, which as I pointed out earlier, was being used by members of the public at that time.  You knew it was a 24 hour service station.  Had a car pulled into the access lane or a pedestrian attempted to cross the road, a terrible tragedy involving an innocent member of the public or multiple fatalities of innocent persons could well have occurred.  Both you and Bertalli must have been aware of this extreme danger, as you each took that curve.

15As it happened, a tragedy of a different sort eventuated.  You, a relatively experienced rider, braked gently as you entered the bend.  Bertalli had only had his license two weeks.  He braked too hard.  The rear wheel of his bike locked and skidded, he lost control and was flung off the bike. 

16Here, Mr Brown, the incident might still have ended safely.  Bertalli might have survived uninjured or with non-life threatening injuries. He might then had learned a valuable lesson about the extreme danger of hooning behaviour on motor bikes.  But the very spot where he was thrown off the bike was the edge of the service station.  At that point, there was an outdoor café connected with the service station and there was a short strip of bollards, marking the edge of the café.  Of the entire length of the access road, the spot where Bertalli came off his bike was the only spot at which those bollards were located.  Bertalli's head hit one of the bollards as he was flung to the ground and he was killed.  You realised that he had crashed and you had turned your bike around.  Your horror had begun.

17It is as a result of these circumstances that you face the court today, charged with one charge of dangerous driving causing death, the death of a person who had recently become your friend, that is Cody Bertalli. So I need to make sure that you understand the way in which it is said that you are guilty of this crime.

18It is not suggested by the prosecution that your bike collided with Bertalli's.  It is not suggested that you forced him in any way to ride his bike in the race.  It is agreed by the prosecution, that both of you were willing participants in this race and that to a large extent, Bertalli's death came about as a result of his inexperience in handling a powerful motorbike at speed.  It is not suggested that you or any of the other participants were affected by drugs or alcohol.  There was also nothing wrong with your bikes.  They were both in excellent condition and were of an appropriate capacity for the licences you each held. 

19The prosecutor suggested to me that one of the aspects of your dangerous driving was in you not giving Bertalli enough room as you both entered the curve.  This suggestion appears to be founded in your description to the police in your record of interview, of having been concerned to move over shortly before the crash, because you were concerned to ensure that you gave Bertalli enough room on the road.  However, I find this particular not to be established on the evidence. 

20The skid marks from Bertalli's bike show him to have been in the very centre of the road when he lost control.  There is nothing from the accident reconstruction or indeed in the prosecution opening from which such behaviour can be established.

21The prosecutor also relied upon your action in instigating the race as a particular of your dangerous driving.  It is true that you did instigate the first race.  However there is no evidence that you instigated the second race.  Likewise, I do not find this particular established on the evidence, and so have disregarded it in evaluating the seriousness of your driving on that night.

22But even disregarding those two factors, it cannot be gainsaid that your driving was extremely dangerous and that your driving was one of the causes of Bertalli's death.  That is all that is required to establish the elements of this offence. 

23You are responsible for his death because you continued to race with Bertalli in the way that I have just described.  You raced with his bike extremely close to yours, on an access road not designed in any way for high-speed bike travel and where it is blindingly obvious that there was a great risk of some tragedy occurring, even if you could not have foreseen the events which unfolded precisely as they did.

24As was said by the prosecutor during the plea, had it been you and not Bertalli who was killed in that way on that night, there is little doubt that it would have been he and not you who I would have been sentencing today for this same charge.  But that does not lessen your responsibility.  As it has turned out, you both engaged in this dangerous activity, but only you were lucky enough to have survived it.

25You counsel has conceded on your behalf on the plea that the elements of the offence of dangerous driving are made out in the manner that I have described above and indeed by your very plea of guilty, you accept that you have indeed committed this offence.

26The maximum sentence for this charge is ten years' imprisonment, with a mandatory disqualification from holding a motorcar or bike licence for at least 18 months.

27The other young men who engaged in this road race were, as I have earlier outlined, charged with different offences from you.  Shaw pleaded guilty to reckless conduct endangering life and received a 12 months' community corrections order without conviction and his driver's licence was suspended for six months.  Hunt, Smith and Sheen pleaded guilty to charges of engaging in a speed race.  Hunt and Smith also pleaded guilty to charges of careless driving.  Each of those three were fined $1,000 without conviction.

28No specific submissions were made by your counsel to me regarding parity.  The prosecutor submitted forcefully that no question of parity arose in your case, because the others were charged with different offences.  I accept this to be true.  As I have outlined, the offending for which I am to sentence you, goes far beyond what was done by the other participants in this race, with the exception of Bertalli himself.  The dangerousness of the riding of both yourself and Bertalli was much more striking, and your conduct much more egregious, because of the matters to which I have previously referred.  Thus, there is very little guidance available to me from the sentences imposed on your co-offenders, and the principle of parity is of very limited importance to me in sentencing you today.

29I received into evidence six victim impact statements.  There was one from your victim's girlfriend, one from each of his sisters, one from his grandmother and one from each of his father and mother.  Each of those victim impact statements sets out in dreadful detail, the impact of Bertalli's death has had on those who loved him.  He will always be the absent boyfriend, brother, son and grandson at all family events. 

30His father described in his victim impact statements how the family has fallen apart after Cody's death.  His mother cannot cope with speaking about her son in the past tense and misses him constantly.  The life of the extended Bertalli family has changed irrevocably as a result of his death.  A few seconds of criminal behaviour on his part and on yours, has changed the Bertalli family's world.  In court, your counsel acknowledged on your behalf the pain of that family and its incomprehensible levels of grief. 

31It is clear that my major sentencing purpose today is that of general deterrence.  The loss of life on our roads is a major community concern.  This court is charged with the responsibility to send a message to other drivers that driving at a speed dangerous which causes death, would result in severe punishment.  I need also to denounce your conduct.  It is by doing so that this court discharges its role in attempting to dissuade other drivers and particularly younger drivers from engaging in the conduct in which you are engaged. 

32You thought you were having fun.  In truth, your conduct was deadly.  It has often been said, that a motor vehicle, car or bike, is as deadly as a loaded gun.  Those who engage in illegal road races, using cars or motorbikes on highways or on subsidiary roads, need to know that the full force of the law will be unleashed on them if they are caught doing so.

33There is however a tension in sentencing you today between the requirements of general deterrence as I have spelt them out and the need to sentence you as a young offender.

34You come before me, even now, as a young man.  It is clear from the authorities that youth, normally a very significant part of the sentencing process, is to be given less weight in sentencing for offences such as you have committed, because of the urgent need for us to stop the carnage on our roads.  The court must deter others of your age from offending of this nature.  This is because it results in catastrophe to many families as of course happened here and the loss of life of young people in their prime.

35Indeed, it is commonly recognised that this principle of general deterrence and denunciation is of such importance in a case such as this that it outweighs an importance, even considerations of youth and rehabilitation.  I note the comments to that effect in Neethling, a decision of the Court of Appeal, [2009] 22 VR 466, which is often referred to an example of that principle.

36I now quote from the decision in this case.

37“ It has long been accepted that, as a general rule, rehabilitation should be a primary – if not the principal – concern in sentencing a young offender.  It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations.  The frequently recurring case of dangerous driving causing death is one usually involving a young offender, of good character and with no or limited prior convictions, and showing genuine remorse.

38Unsurprisingly, experience in Victoria mirrors that in New South Wales.  It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight."

39I end the quote at that point.  

40I accept that these principles which I have referred to in that case of Neethling apply in your case.

41My Brown, I received several character references on your behalf.  I will not refer to each of them individually, but I have taken the contents of each of them into account in sentencing you today.  In them, you are described by those who know you as quiet, reserved, respectful, polite and friendly.  Many members of your family and extended friendship group attended the plea hearing, to show their support.  I take that attendance into account as demonstrating the regard in which you are held both by your family and by your friendship group within the Mildura community.

42Since leaving school, you have had constant employment and are by all accounts an honest and hardworking member of the community.  This catastrophe has clearly affected you greatly.  This is evident from the material in the references tendered and also in the report from Dr Mirabel McConkey, which details the depression which you have endured as a result of this incident and because of your remorse at the part you played in it.

43Dr McConkey has diagnosed you as having developed post-traumatic stress disorder as a direct consequence of your psychological reaction to Bertalli's death.  You think about the accident daily.  Your mother described your reaction in some detail.  She says you are still alive, but you are not the same.  You feel that your life has no purpose and you have lost a great deal of your social group as a result of what you have done.  One of your referees suggests that you face a lifetime of regret and loss.  I agree.

44You pleaded guilty to this offence, Mr Brown. This must of course be taken into account in your favour.  You have saved the community the cost of a trial.  You have, more importantly, saved the members of Cody's family and the witnesses the agony of reliving those events of that night in a contested setting. 

45I also take your plea of guilty as evidence of remorse.  Your remorse is also evident from the content of the character references and from the report of
Dr McConkey.  I accept that your plea of guilty was entered at a relatively late stage, but I concur that it is important to note that this was because of genuine concerns raised by your lawyers about the nature of the charge to which it was appropriate for you to plead.

46I accept also that your record of interview shows that you were cooperative with the police and that you did attempt to deny the extent of your involvement in this criminal behaviour.

47I accept also, Mr Brown, that you have very good prospects of rehabilitation.  You have no prior convictions and indeed you appear to have had no prior contact at all with the criminal courts or with the police.  You have a stable work background and a very supportive extended family.  I am sure that those of your family and friends who have appeared on your sentencing hearing, will provide valuable support to you in the future to ensure you continue on the road to rehabilitation. 

48You appear to have very good prospects of ultimately making a future for yourself in hospitality.  I accept that your past good work ethic will continue.  I also note that even though you were before this offence a light drinker, you now do not drink alcohol at all, and there is no suggestion that you take drugs.

49In sentencing you, I must consider the prospect of specific deterrence, that is the prospect that you may reoffend.  On all of the material before me, I have little concern that you will do so.  I think you have well and truly learned your lesson as to the dangers of showing off or driving in a dangerous manner on the road.  I also take into account the offending was an isolated and very short incident, out of character that I have otherwise heard about you.  Thus, I take the view that you have very good to excellent prospects of rehabilitation.

50Your counsel also submitted to me that the fact that Bertalli had voluntarily participated with you in the race was a significant mitigating factor.  In making this submission, he relied upon some comments in a case of Johnstone, that is DPP v Johnstone [2006] 16 VR 75.  In that case, the offender who was driving a car and simultaneously texting at a speed of between 90 and 100 km an hour, claimed that he had been distracted by noise from his passengers, and that this noise contributed to his lack of concentration on the road, resulting in him crashing the car and killing two of the passengers. 

51In that case, the Court of Appeal agreed that in some circumstances, the pre-collision conduct of a victim could be seen as a migratory consideration.  However, the court also noted that it is up to the judge in sentencing to attribute such weight to the conduct of a victim as was appropriate, given the circumstances of each individual case.

52I do consider the fact that Bertalli voluntarily participated in the race with you to be mitigatory, but in the circumstances as I find them to be, I do not attach any more than minor weight to this factor in sentencing you today.

53Mr Brown, your counsel submitted to me that because of your youth, your excellent prospects of rehabilitation and the fleeting nature of this offending, it was open to me to impose a non-custodial sentence on you.  He suggested that your moral culpability for Bertalli's death was low. 

54As did counsel in another case of Stephens,( R v Stephens [2016] VSCA 121,) a decision handed by the Court of Appeal just last month, your counsel cited an observation of the Sentencing Advisory Council.  That observation is recorded in a report of tha tCouncil as to sentencing outcomes for major driving offences.  It deals with the possible application of the Boulton principles to the offence of dangerous driving causing death.

55The Council had said this in its report. "Given that the maximum penalty for dangerous driving causing death is among the lowest prescribed for homicide offences, it may be a form of homicide considered suitable for a CCO, depending on the objective gravity of the conduct and the personal circumstances of the offender in the particular case." 

56In considering your counsel's submission, I am well aware that it is my duty to consider the non-custodial options open to me carefully and not to sentence you to prison unless there is no other appropriate alternative.

57As you counsel submitted, since the decision in Boulton, it is established that such a disposition, that is a community corrections order, can be seen to be punitive and so in some circumstances fulfil the requirements of general deterrence and denunciation, as a community corrections order is often described to be punitive for every day of its operation.

58In the case of Stephens, which is the case to which I was just referring, the Court of Appeal characterised the moral culpability of the offender as being very high.  So this part of the defence submission was not viewed with favour.  The fact that the consequences which occurred were easily foreseeable, was one of the factors which led the Court of Appeal to characterise the moral culpability of the offender in the case before it as high.

59In Stephens, the court endorsed the way in which moral culpability had been viewed, both in a New South Wales case of Whyte and a Victorian case of Neethling which is a case to which I have already referred.  The court in Stephens made it clear that moral culpability must be analysed on consideration of the  individual circumstances confronting a court.  It is not just a matter of having a checklist of factors and counting the number of aggravating features or counting the absence of aggravating features.

60Here also, Mr Brown, I judge your moral culpability to have been at least moderate to high.  It cannot be said that you could not have foreseen or should not have foreseen that death or serious injury may well have resulted from your actions on that night.  The speed which you travelled on your motorbike on the narrow access road, was breathtaking in its stupidity. Your culpability is moderate to high.  In my view, the imposition of a standalone community corrections order would not accomplish all of the sentencing objections relevant in this case. 

61I agree with your counsel that a community corrections order would provide an opportunity to give back to the community through unpaid community work and would enable you to continue on your path to rehabilitation in the community.  However, in my view, it would not be sufficient to meet the requirements of general deterrence and denunciation as I have outlined them.

62Your own counsel referred to the need to deter a dangerous riding culture amongst motorbike users.  Your offending was a significant example of this dangerous riding culture.  I say this particularly in the light of further comments of the Court of Appeal in the case Stephens to which I have previously referred about appropriate sentencing options for the offence of dangerous driving causing death.  I have indicated that Stephens was decided barely a month ago and in that case the Court of Appeal concluded that sentencing dispositions imposed by this court for this offence are inadequate, and that there is a need for gradual increase in sentences for cases of dangerous driving causing death, which fall within or above the range of seriousness.

63In that case itself, an assertion that a community corrections order was an available disposition was rejected, and a sentence of three years and three months' imprisonment upheld, albeit that I say in parenthesis, that the circumstances in this case were very different from that before me today and that sentence encompassed more than one offence.

64Of course, when a judge sentences a person for an offence, each case must be assessed on its own merits.  It is my task, Mr Brown, to overall arrive at a just punishment for you, taking into account all the circumstances of this driving event and all the submissions put to me as I have outlined them.

65I accept that I must pay particular regard to you youth in sentencing you today. One of the courses open to me because of your youth, is to impose a period of detention in a youth justice centre as an alternative to imprisonment in an adult prison.  But in order to take this course, I would need to be satisfied that your offending warranted a period of imprisonment of less than three years.

66Mr Brown, I have previously indicated that I regard your offending as being in the mid to high range of offending of this type.  I am not satisfied that it warrants a standalone sentence of less than three years.

67In my view, the only sentence available to me, to meet all my sentencing responsibilities, taking into account the prosecution submissions and also the matters put to me by your counsel, is a time of imprisonment in an adult gaol, followed by a community corrections order, utilising my power to order you to do community work under such an order and to undergo courses relating to your offending behaviour.  This will assist to address the issues of your youth and the importance of rehabilitation, while still focusing on general deterrence and denunciation.  I note that the prosecution did not suggest that such a combination was inappropriate in your case.

68Hayden Brown, can you stand up please.  Hayden Brown, on the charge of dangerous driving causing death, you are convicted and you are sentenced to 18 months' imprisonment.  I will not fix a non-parole period, as to so would conflict with the requirements of the community corrections order which I expect now to impose upon you.

69On the completion of that period of imprisonment, I order that you undertake a community corrections order for a period of two years.  I have obtained a report which indicates that you are suitable to undertake such a course.  I will also order that you complete a driving course as part of that order and that you undertake 300 hours of community work over that period of two years. 

70I can only make a community corrections order if you agree to it and in order for you to make a decision as to whether you agree, I need to read out to you the conditions of the community corrections order.  If I could have that document, please?

71Mr Brown, there are some standard terms of this order.  The order will commence on your release from prison.  You must not commit any other offence for which you could be imprisoned during the time your order is in force.  You must comply with any obligation or requirement under the order.  You must report to and receive visits from the Secretary.  You must report to a Community Corrections Centre within two clear working days of your release.  You must not leave Victoria without first getting permission to do so from the Secretary.  You must let a community corrections officer know within two clear working days if you change your address or your job, and you must all lawful instructions from and directions of the Secretary.

72As well as those conditions, the conditions which I will apply as well, are that you must perform 300 hours of unpaid community work over a period of two years, and I will also order that you participate in programs or courses to address factors relating to this offending.

73Mr Brown, do you understand that order and do you agree to comply with it?

74OFFENDER:  Yes.

75HER HONOUR:  All right.  If the order can be taken to Mr Brown and perhaps Mr Tellerson if you could explain the effect of that community corrections order.

76Yes, thank you, Mr Brown, you have signed that order and so have I.  You have been advised by your counsel of the importance of complying with the terms of that order and the community corrections order will commence upon your release from prison.

77I am required under the Sentencing Act to tell you the sentence I would have imposed upon you, had you not pleaded guilty.  If you had not pleaded guilty, I state I would have sentenced you to a period of four and a half years' imprisonment, with a non-parole period of two years. 

78The prosecutor made application for a forensic sample order. In my view the making of such an order against you is not appropriate.  This provision was introduced in order to enable police to more easily identify offenders.  There is no issue of identification in this case, or any suggestion that you attempted to deny your involvement in the offending behaviour.  There is little risk of you reoffending, you are a youthful offender.  In my view, it is not in the public interest for such an order to be made and your offending behaviour does not justify it being made.

79Are there any other matters, Mr Prosecutor?  Yes, I will indicate also, Mr Brown, that under the Sentencing Act, because of the offence that you have committed, I am required to cancel your driving licence, I do so, and I disqualify you from holding a licence for a period of three years, commencing today.  Are there any other matters, Mr Prosecutor?

80MR O'DOHERTY:  No, Your Honour.

81HER HONOUR:  Mr Tellerson?

82MR TELLERSON:  No, Your Honour.

83HER HONOUR:  Yes, thank you, remove the prisoner.  Yes, thank you, there are no other matters in the circuit.

84MR O'DOHERTY:  No, Your Honour.

85HER HONOUR:  So thank you very much, Mr O'Doherty and
Mr Tellerson for all your assistance during the circuit.

86MR TELLERSON:  As Your Honour pleases.

87HER HONOUR:  And I will adjourn the court sine die,
Mr Tipstaff.

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