Director of Public Prosecutions v Browne

[2022] VCC 1210

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02217

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER BROWNE

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2022
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Browne
MEDIUM NEUTRAL CITATION:	[2022] VCC 1210

REASONS FOR SENTENCE
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Subject:Dangerous driving causing death – Conduct endangering persons.

Catchwords:              Guilty plea – killed 2 year old son in farm buggy accident – mid range offending – severe PTSD – just punishment moderated

Legislation Cited:      Sentencing Act 1991 (Vic); Road Safety Act1986 (Vic).

Cases Cited:Peers v the Queen [2021] VSCA 264; The Queen v Robert Teh [2003] VSCA 169; Boulton v the Queen (2014) 46 VR 308; Stephens v The Queen [2016] VSCA

Sentence:                  3 year community correction order with 250 hours of community work condition. Statutory licence or permit disqualification for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Ramsay	Office of Public Prosecutions
For the Accused	Mr T. Danos	Timothy Hemsley & Associates

HIS HONOUR:

1Christopher Browne, you have pleaded guilty to:

(a)   one charge of dangerous driving causing death (Charge 1), and

(b)   one charge of conduct endangering persons (Charge 2).

2The maximum penalties are 10 years imprisonment and 5 years imprisonment respectively.

Circumstances of your offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea.[1]­­ This contains agreed facts.

[1] Exhibit A: Summary of Prosecution Opening for Plea dated 25 July 2022.

4On 25 December 2020, you had family members at your home at Barnawartha North, for a Christmas brunch.

5Around 11:50 am, you brought out your Polaris General 1000 buggy, a left-hand drive two seater vehicle, which was designed for off road use, to give them a ride.

6It had rollbars and seatbelts. The driver’s seat was fitted with a seatbelt interlock. If the seatbelt was not clipped in, a red warning light would flash and the speed would be limited to 24km/h.

7When you purchased it, in June 2020, the salesperson explained the buggy’s safety features and recommended helmets be worn although there was then no legal requirement for them at the time.

8Inside the buggy,  there were notices warning of the risk of death from a rollover and warning not to exceed the two-occupant seating capacity.

9On the day, the weather was clear and fine. The ground was dry and mostly flat, although uneven.

10You got into the driver’s seat. As the seatbelt was already clipped in, you sat on top of it which overrode the seatbelt interlock. Your two year old son, Lincoln, was on your left knee, closest to the left door of the buggy. You held him in place with your left hand and used your right hand to steer. Your sister got into the passenger seat and put on her seatbelt. None of you were wearing helmets.

11You drove into the paddock and performed several ‘donuts’. You then drove along the gravel driveway to the property entrance and turned around.

12When you got back to the paddock, as you tried to perform another “doughnut”, the buggy overturned. A witness estimated your speed to be between 40 and 55 km/h.

13As the buggy overturned, Lincoln fell out and the buggy landed on top of him.

14You rushed to him. So did your wife. She, and another family member, tried CPR. Lincoln could not be revived, and he died from head and neck injuries at the scene.

15By your guilty plea to charge 1 you admit, by driving the buggy dangerously, you caused the death of your son (Charge 1 – Dangerous driving causing death).

16Your sister had minor bruising to her shoulder.

17By your guilty plea to charge 2 you admit, by driving the buggy recklessly, you placed your sister in danger of serious injury (Charge 2 – Conduct endangering persons).

18Police attended your property. You said, “I normally always put the seatbelt on us, but the seatbelt had already been plugged in… Someone’s left the seatbelt in… So I left that.”

19Police arrested you and took you to Wodonga police station.

20At interview, you said you were taking your sister for a ride in the buggy. You said you jumped in, on top of the seatbelt which was already clipped in, with your son on your leg. You said you held him with your left hand and steered with your right.

21You said you made your sister put her seatbelt on.

22You said you were doing burnouts, as you had done many times before and, when you went to do one last burnout, the buggy flipped.

23You said you saw your son go under the buggy which crushed his neck.

24You said you had probably done about 20 hours driving in the buggy previously.

25You admitted to getting “a little complacent” with the safety warnings.

26Police charged you with the more serious charge of culpable driving.

27After a sentence indication hearing, on 22 June 2022, you pleaded guilty to the charges now before the court.

Criminal record

28You have no criminal record.

Personal circumstances

29You were born in July 1989. You were 31 years old when you offended. You are now 33.

30You are the youngest of three siblings. You have two older sisters. Your parents separated when you were a child. Your father worked at a manufacturing company for more than 30 years and has recently retired. Your mother runs a business providing meals to a local retirement facility.[2]

[2] Exhibit 4: Mark de Koeyer 14 June 2022.

31You married your wife in 2016. You bought a house at Albury, which you renovated and sold. You then built your home at Barnawartha North, where you and your family still live. Your wife gave birth to twin girls, who were stillborn, followed by Lincoln and your youngest son, Xander.[3]

[3] Ibid.

32Despite the tragic loss of Lincoln, your wife has remained staunchly loyal to you. She has stood by you at every step of these proceedings.

33You have an excellent work history. You own and operate a home building business. You are a partner in a kitchen cabinetry business. You also help your wife with her event hire and wedding business, and your brother-in-law with his plumbing business.[4]

[4] Ibid.

34You are passionate about community sport. You play and coach soccer. Your business also sponsors soccer and basketball teams.[5]

[5] Ibid.

35Your referees regard you highly as a hardworking, honest and caring man.

36You are devastated by the accident and deeply remorseful for it. You built a playground next to your house in memory of your son.

37Your father-in-law wrote that you have become withdrawn. He states that you will carry ‘the demons of the accident for life’.[6] A friend described you as ‘only a shadow of’ your former self.[7]

[6] Ibid.

[7] Exhibit 5: Reference of Brent Alexander 15 June 2022.

38Dr Ferencz Baranyay is your General Practitioner.[8]

[8] Exhibit 2: Report of Mr Browne's General Practitioner, Dr Ferenc Baranyay, dated 15 June 2022.

39In his opinion, you have suffered severe mental injuries as a result of your involvement in the accident. You have “significant symptoms of anxiety, panic, hypervigilance, insomnia, tearfulness and despair”.

40He diagnosed you with post-traumatic stress disorder with anxious mood and has treated you with antidepressants for your anxiety and sedatives to help you sleep.

41In his opinion, your condition will endure for some years to come if not forever.

42He described you as genuine in caring for your family, humble in your approaches for help and motivated to continue as a father, husband and business owner.

43Dr Baranyay wrote, “I would implore the court to apply compassionate consideration to Mr Browne who has already suffered enough in December 2020 as a result of the death of his child, and has been genuine in persevering with his mental health recovery for the sake of others who rely on him.”

44Dr Baranyay referred you to a psychologist, Richard Brown, for counselling.

45With your wife, you have seen Mr Brown monthly, sometimes more often, since 4 January 2021.[9]

[9] Exhibit 3: Report of Mr Browne's Treating Psychologist, Dr Richard Brown, dated 14 June 2022.

46You told him you ‘blamed [yourself] completely for what had happened’. He said you have ‘expressed profound feelings of guilt and sadness’ and that you have said ‘the only thing keeping [you] going was a sense of responsibility to look after [your] wife and [your] younger child’.[10]

[10] Ibid.

47He writes the accident has affected you ‘emotionally and functionally’. Emotionally, you have been ‘utterly and profoundly devastated’ and experience ‘an enormous degree of guilt and self-loathing’. Functionally, you have ‘enormous difficulty’ in running your business due to problems with ‘concentration, memory and energy’.[11]

[11] Ibid.

48He confirmed your diagnosis of Post-Traumatic Stress Disorder (‘PTSD’) with anxiety and depression, as a consequence of the accident.

49In his opinion, you ‘will require psychological therapy for years to come’.[12]

[12] Ibid.

Defence Submissions

50Your counsel, Mr Danos, in written and oral submissions, submitted a non-custodial sentence is appropriate in your case.[13]

[13] Exhibit 1: Defence Submissions on Sentence Indication dated 21 June 2022.  

51He submitted, because of your PTSD, you have impaired mental functioning that would result in you suffering substantially and materially greater than the ordinary burden of imprisonment. In his submission, the statutory exception to a mandatory term of imprisonment is made out.[14]

[14] Sentencing Act 1991 (Vic), s 5(2H).

52Mr Danos submitted that your incarceration would have a number of negative consequences. You would lose access to psychological treatment and family and community support. You would no longer be able to support your wife and youngest child. You would no longer be able to run your business, which would impact on your employees, or help out in other businesses.

53He submitted  you are deeply remorseful. You sold the buggy and have no intention of replacing it.

54Mr Danos submitted, although your guilty plea was not early, there was no committal hearing and no witnesses were required to give evidence. Accordingly, in his submission, your plea has high utilitarian value, greater now, given the increased backlog of trials in the wake of the COVID-19 pandemic.

Prosecution Submissions

55Counsel for the prosecution, Ms Mahady at sentence indication and Ms Ramsay at plea, submitted your offending is a serious example of the offence of dangerous driving causing death and your moral culpability is high because:

(a)   you were aware of the safety features and risks associated with the use of the buggy,

(b)   it had warning notices about the risk of rollover and the two occupant seating capacity,

(c)   you exceeded the passenger limit and drove with your child unrestrained,

(d)   you drove the buggy with the seatbelt interlock overridden,

(e)   you were driving at 40 – 55 km/h before the buggy rolled, and

(f)    you drove in a deliberate manner that caused the buggy to lose traction.

56The prosecution accepted your PTSD with anxiety and depression will make prison harder for you and will likely deteriorate with incarceration.

57The prosecution conceded your psychological conditions do place upon you a substantially and materially greater burden of imprisonment that a person without your conditions.

58The concession notwithstanding, the prosecution submitted, because of the seriousness of your offences and your high moral culpability, your offending calls for a sentence of immediate imprisonment.

Consideration

59The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

60General deterrence must be given considerable weight in sentencing an offender such that a person who kills while driving dangerously is likely to receive a term of imprisonment.

61Because Parliament has prescribed the offence of dangerous driving causing death as a Category 2 offence, a term of imprisonment must be imposed unless a statutory exception is established.[15]

[15] Sentencing Act 1991 (Vic), section 5(2H).

62On the basis of the opinions of your treating doctor and treating psychologist, I am satisfied, in consequence of causing your son’s death, you have suffered PTSD, with severe symptoms, that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

63I am satisfied a statutory exception has been established.[16]

[16] Sentencing Act 1991 (Vic), section 5 (2H)(c)(ii).

64However, that is not the end of the matter.[17]

[17] Peers v the Queen [2021] VSCA 264.

65I have to decide the appropriate sentence taking into account the circumstances of your offending and your personal circumstances.

66Your offending was objectively serious.

67You drove the buggy with both your son and you unrestrained. You overrode the seatbelt safety interlock. And, with your sister also in the buggy, you exceeded the recommended passenger limit. In performing doughnuts, you deliberately drove the buggy so as to lose traction. It was an inherently dangerous manoeuvre because of the risk the buggy would rollover.

68In my view, your offending falls into the mid-range of seriousness of the offence of dangerous driving causing death.

69While I accept you took your son and sister in the buggy for their entertainment because you ignored a number of safety warnings, your moral culpability is high.

70As I have said, you had done doughnuts in the buggy, without incident, many times before. As you told police, “I think (it was) to easy to get a little complacent.” Such complacency has wrought devastating consequences upon you.

71Understandably, you have suffered deep guilt and sadness which has manifested itself in severe symptoms of PTSD.

72You have said to your counsellor, more than once, the only thing keeping you going is a sense of responsibility to look after your wife and your younger child.

73The suffering and loss, you have brought upon yourself, involves a punishment more than any court could impose.[18]

[18]The Queen v Robert Teh [2003] VSCA 169.

74Accordingly, in my view, the sentencing objectives of just punishment and specific deterrence are to be given less weight.

75And, in the circumstances of your case, the weight to be given to general deterrence should be moderated.

76Additionally, I will temper the sentence I impose to take into account;

(a)   the high utilitarian value of your guilty plea, which has spared your wife and other family members participation court proceedings, and which has helped to alleviate the backlog of trials in the wake of the public health pandemic; and

(b)   the additional hardship of prison you would endure, and the likely deterioration of your mental health in prison, due to your PTSD

77In my view, you are likely to never reoffend. You are committed to your family, hard-working and community engaged. Your prospects of rehabilitation are excellent.

78Nevertheless, you committed a serious offence with tragic consequences. Ordinarily a prison sentence will follow.[19]

[19] See, for example, Stephens v The Queen [2016] VSCA 121 and Peers v the Queen [2021] VSCA 264.

79However,[20] the court must not impose a sentence that is more severe than that which is necessary to achieve the purposes of sentencing[21] and must not impose a prison sentence unless it considers that sentencing purposes cannot be achieved by a sentence that does not involve imprisonment.[22]

[20] Subject to subsection 5(2H) which is not engaged here because of the operation of s 5(2H)(c)(ii).

[21] Sentencing Act 1991 (Vic), s 5(3).

[22] Sentencing Act 1991 (Vic), s 5(4).

80A community correction order can meet the punitive and rehabilitative purposes of sentencing, even in relatively serious cases.[23]

[23] Boulton v the Queen (2014) 46 VR 308, [25].

81I am satisfied a community corrections order can achieve all sentencing purposes in your case.[24]

82I have had you assessed for a community correction order and you have been found suitable.

83Considering your offending arose out of a single episode, I will impose an aggregate sentence for the two crimes you have committed.

84By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

85Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,

(a)   On charge 1, dangerous driving causing death, and

(b)   Charge 2, conduct endangering persons,

you are convicted and sentenced to a community correction order which will commence today. The duration of the order will be 3 years.

86In addition to the mandatory conditions, I order, as a punitive component, that you complete 250 hours of unpaid community work.

87Under the Sentencing Act 1991, dangerous driving causing death is a serious motor vehicle offence.[25]

[25] Sentencing Act 1991 (Vic), Section 87P.

88As paragraph 89 (2) (a) of the act requires me to do, I order all licenses and permits held by you under the Road Safety Act1986 (Vic) be cancelled and you are disqualified from obtaining any further license or permit for the statutory minimum period of 18 months.

89While there is some artificiality in the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to 2 years and 6 months imprisonment and imposed a minimum non-parole release period of one year and 3 months.