Director of Public Prosecutions v Brown

[2014] VCC 17

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-13-01719

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC BROWN

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2014
DATE OF SENTENCE:	28 January 2014
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2014] VCC 17

REASONS FOR SENTENCE
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Subject:              
Catchwords:        Culpable Driving – medium range – BAC 3 times legal limit
Legislation Cited:
Cases Cited:       
Sentence:           

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr  J Champion S.C. DPP & Ms Boult at plea	DPP
Mr  J Champion S.C. DPP at sentence
For the Accused	Mr B Johnston at plea	Doogue O’Brien George Criminal Lawyers
Ms Ballard at sentence

HIS HONOUR:[1] 

[1] There are portions of these remarks which have been redacted due to privacy considerations.

1Eric Kahotea Brown, you have pleaded guilty to one charge of culpable driving causing death by gross negligence and whilst driving under the influence of alcohol, to such an extent as to be incapable of having proper control of the motor vehicle which you were driving.  The maximum penalty for this offence is 20 years imprisonment.

2You went out to licensed premises with your close friend, Yogesh Bute, with whom you socialised and drank.  You and Mr Bute left your residence at around midnight on 28 December 2012.  You were observed on CCTV footage entering licensed premises at around 2.20 a.m. and leaving these premises at around 5 a.m.  CCTV footage from within the premises shows you drinking throughout the time you were there.  On leaving you were driving with Mr Bute who was seated in the front passenger seat.

3Observations by an independent witness deposed to your erratic driving along Hoddle Street shortly prior to the collision.  At around 5.15 a.m. you collided with the rear of a slow moving vehicle which contained a driver and two adolescent passengers.  This vehicle had just commenced moving off from a stationary position at the intersection of Hoddle and Freeman Streets.  Fortunately none of the occupants of this vehicle suffered any serious injury.

4Analysis indicates that the speed on impact of your vehicle was about
100 kilometres per hour.  You were travelling in a 70 kilometre per hour zone.  You had swerved to the left in an attempt to avoid this vehicle and the right front of your vehicle struck the other vehicle.  Your vehicle then collided with a traffic control signal pole and uprooted it from the ground.  It then struck a tree on the footpath area of Hoddle Street.

5This resulted in the death of your friend and front seat passenger,
Mr Bute.  You were hospitalised until 5 January 2013.  You suffered a closed fracture of the left metacarpal as well as fractured teeth.  Analysis indicates that at the time of collision you would have had a blood alcohol concentration measured at its lower limits of .168 per cent.  Your actual blood alcohol concentration while driving may however have been lower than this figure.  In any event, it is around three times the legal driving limit.

6You were 28 at the time of your offending.  Your culpability is marked by a combination of excessive speed, excessive alcohol consumption and erratic driving prior to the incident.  The objective circumstances of your offending place it within the mid range of offences of this type.  I was urged on the plea to impose a less than a normal head sentence as well as non parole period.  In my opinion the head sentence must reflect the objective circumstances of your offending.

7Yogesh Bute was 30 at the time of his death.  He had recently returned to Australia from India after his marriage.  Mr Bute's wife, parents and two brothers all live in India.  Victim impact statements were tendered on the plea and three were read to the court.  They all refer to the great loss which their authors have suffered.  I have taken their contents into account and will refer to the content of two of them in particular.  Mr Bute's wife states:

"On account of this mishap my health is completely ruined.  I feel miserable.  Now I feel scared of driving.  I suffer from sleepless nights and poor eating.  I am mentally tortured since the crime".

8Mr Bute's mother states:

"Unfortunately his passing away caused immense mental, physical disaster in my life which is immeasurable in monetary terms".

9You are now 29 years of age.  You are the eldest of four children and were supported in court by your mother, siblings and other friends.  You immigrated to Australia from New Zealand when you were two years old.  For most of your early life you lived in the Broadmeadows area.  You were educated to partway through Year 11 when you left the local high school which you attended.  Your departure from school occurred after a distressing and violent confrontation of you by four bullies.

10— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —— — — — — — — — —. On leaving school you commenced your working life and you have a sound work history.  Variously you have worked in web design, administration, project management, computer network administration and also worked within the community sector.  In addition to paid employment you have voluntarily worked for a number of community organisations.

11These included but are not limited to the Broadmeadows Neighbourhood Community Renewal, Orygen Youth Health, Broadmeadows Neighbourhood House and the Dallas Neighbourhood Community House.  You have received a number of accolades and awards for your voluntary community works.  Tendered on your plea were an impressive array of character references.  They speak of you in a very positive light.  I shall quote from just one of these.  In his reference of 17 January 2014 Charlie Hellier, a friend, states:

"He is a very genuine and caring person who often thinks of others first and puts their interests ahead of his own.  He is completely trustworthy, loyal and selfless.  I have no trouble recommending him.  Eric is kind, considerate and a genuine nice guy.  He also holds strong family values.  He has grown and matured in the time that I have known him."

12You have no prior convictions.  You were very close to Mr Bute and feel his loss and the enormity of the consequences of your offending.  You did not intend nor foresee his death and you will have to live with this for the rest of your life.  You are racked with guilt as a result of your offending.  You pleaded guilty at the earliest opportunity and your plea as well as other material demonstrates your sincere contrition and remorse.  In addition your plea has facilitated the course of justice and stands as a public acknowledgement of the wrongfulness of your conduct.

13Your rehabilitative prospects are excellent.  A report of Dr Bell, psychologist states:

"Based on his pro social lifestyle and community involvement and support his rehabilitation in the community presents with few, if any, real challenges and I consider him to be a low risk of reoffending."

14General deterrence however remains a salient sentencing consideration.  For you specific deterrence is of less significance.  As you are aware, your offending requires me to impose a sentence of immediate imprisonment upon you.  You have been living with this prospect for the past 13 months.  — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —— — — — — — — — — — — — — —. I take this into account. Whilst serving your term of imprisonment your concern and disquiet will most likely continue.  I take this into account.

15I was referred to many authorities during the plea hearing.  I have had regard to them and have been assisted by their provision.  So far as your counsel's submission that I ought fix a non parole period which is lower than normal, I have fixed the period which in all the circumstances I consider to be the minimum term which justice in the circumstances of this case requires to be served.

16Balancing all matters, on Charge 1, culpable driving cause the death of Yogesh Satish Bute I sentence you to six years imprisonment and I fix a non parole period of three years and six months.  I declare five days served by way of pre sentence detention.  But for your plea of guilty I would have imposed a sentence of eight years imprisonment with a five year and six month minimum.

17I order that all driver's licences held by you are to be cancelled and you are disqualified from driving for a period of four years and six months commencing 3 July 2012.   Are there any other orders required?

18MR CHAMPION:  No, no other orders, Your Honour.

19HIS HONOUR:  Thank you.  I thank counsel for their assistance and in particular yours, Mr Champion.

20MR CHAMPION:  Thank you, Your Honour.

21MS BALLARD:  If Your Honour pleases.

22HIS HONOUR:  If Mr Brown could be removed, please.

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