Director of Public Prosecutions v Buckley

[2021] VCC 1184

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01153

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER BUCKLEY

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2021, 25 -28 May 2021, 31 May – 3 June 2021, 21 July 2021 & 17 August 2021
DATE OF SENTENCE:	17 August 2021
CASE MAY BE CITED AS:	DPP v Buckley
MEDIUM NEUTRAL CITATION:	[2021] VCC 1184

REASONS FOR SENTENCE

---

Subject: Culpable driving causing death and negligently causing serious injury

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Accused	Mr M. Turner	HBH Legal

HER HONOUR:

1Peter Buckley, a jury has found you guilty of one charge of culpable driving causing death and four charges of negligently causing serious injury.

2At the commencement of the trial you pleaded guilty to the less serious alternatives of these offences.  The jury, by their verdict, were satisfied your driving was grossly negligent and not merely dangerous.

3The maximum penalty for culpable driving is 20 years and negligently causing serious injury is 10 years.  Culpable driving causing death is a Category 2 offence and it was not suggested any of the exceptions could be established.  A term of imprisonment must be imposed.  Additionally, the standard sentencing regime applies with respect to culpable driving causing death, with the standard sentence being eight years.  There is also a mandatory disqualification period in respect of your licence in relation to each offence.

4The following is a brief outline of the circumstances of your offending as set out in the agreed facts and evidence.

5You were employed as a truck driver by logging contractors at Tabeel Trading Nominees Pty Ltd in Mount Gambier.  About 3 am on 14 March 2018 you attended the depot and you began your shift, driving a Western Star prime
B-double configuration truck carrying two trailers (the prime mover).  In the course of the day you travelled to Robe, then back to Mount Gambier, to Lucindale and then towards Portland.

6Your movements on this day, the speed you were travelling, the route that you took, the position of the other vehicles in the incident, the condition of the prime mover and conditions on the road were not in dispute in the trial.  Additionally, the cause of the accident and the serious nature of the injuries suffered by the victims as a consequence were not contested.  The issue for the jury was whether you, in driving the prime mover on this day, were grossly negligent in circumstances where you had failed to reveal to any of the regulatory authority, medical professionals or employer of the frequency and extent that you were experiencing 'blackouts' or 'déjà vu' episodes.

7On this day workers were re-sealing portions of the Portland-Nelson Road and controlling traffic in the vicinity of these works.  There was a worker wearing high visibility clothing who, in addition to controlling the traffic lights, used a 'Stop/Go' bat as a back up to alert drivers when they were required to stop their vehicles.  Immediately leading up to this stopping point there was signage reducing the speed limit.  There was an unobstructed clear view of about 800 metres from the signage and beyond, to the stopping point.

8From about 2.22 pm traffic heading south on Portland-Nelson Road was directed to stop by red traffic lights and a worker's bat.  At 2.25, around the time you passed the 60 kilometre roadwork speed sign, the prime mover reduced its speed from 80Ks to 50 kilometres per hour over a 10 second period.

9Immediately in front of the prime mover's path were the following stationary vehicles:

(a)A 2017 Toyota Kluger station wagon.  This car was being driven by James Driver, who was driving his wife, Juliet Driver, in the front passenger seat; his brother, Marcel Driver, in the left rear passenger seat and his brother's wife, Mary Driver, in the right rear passenger seat.  This group were touring the western districts, some of whom were visiting from overseas.

(b)A 1996 Mercedes Benz E230 silver sedan.  This car was driven by Robert Davie, who was driving home alone, having just visited a friend nearby; and

(c)A 1996 Freightliner Tipper.  The Tipper was driven by Donald Risk, who was alone and conducting deliveries in the Portland area.

10Your prime mover drove into the rear of the Toyota, causing it to push into the rear of the Mercedes.  Both these cars then impacted forward, into the rear of the Tipper.  All three vehicles were pushed along before the Toyota and Mercedes rotated clockwise and to the right, away from the prime mover.  The Tipper was pushed forward and off to the right side of the road by the impact.

11Your prime mover came to a gradual and controlled stop approximately 160 metres from the point of impact and you were observed loosening the straps on the load of your logs.  The prime mover sustained minor frontal damage with signs of paint transfer on the bull bar, a broken spotlight and a broken headlight.  When you were spoken to at the scene you were in a confused state, unable to say where you had come from, where you were or what had occurred.  You had no apparent injuries or medical issues.

12Tragically, the same could not be said for the passengers in the Toyota and Mercedes.  Mary Driver, who was aged 56 and was seated in the back passenger seat, died as a result of multiple injuries sustained in the collision.  On examination her body had identifiable injuries that included bleeding on the brain, a spinal fracture, multiple rib fractures and pelvic fractures.  In the opinion of the pathologist Mary Driver's death was caused by these multiple injuries.

13Marcel Driver, also seated in the back, suffered serious physical injuries from the collision that included a fractured left rib, spinal fractures and cuts and bruises to his left ankle.

14Juliet Milner, who was seated in the passenger front seat, suffered serious injuries from the collision that included spinal ligament injury requiring surgery, insertion of a metal plate on her vertebrae and a bone graft from her hip to help her vertebrae fuse together.

15Robert Davie, the driver of the Mercedes, suffered serious injuries from the collision including multiple fractures, a liver laceration, acute kidney injury, water on the lung, swollen, tender legs and short-term delirium.

16As to your medical state at the time and the cause of the accident, a number of years ago you had sustained a head injury.  In 2001 you were prescribed sodium valproate or Epilim as a result of déjà vu episodes you were experiencing that were linked to that historical injury.  For a number of years, due to compliance with medication, these episodes had abated.  At the time of the accident you were prescribed a 900 milligrams twice a day dosage of that medication.

17The medical opinion was that the probable scenario was that you had suffered one of these episodes or experienced a complex partial seizure immediately before the collision, which resulted in your unawareness of it, followed by confusion and disorientation.  As a consequence you were unable to maintain proper control of the prime mover.

18As a licensed driver of heavy vehicles such as those like the prime mover you were required to meet certain regulatory checks and medical assessments including that you undergo and successfully complete an annual fitness to drive medical assessment.  This assessment was subject to an annual review by a neurologist - in your case Dr Andrew Moey - in order for your 'clearance' to drive such heavy vehicles to remain effective.

19The jury accepted from your previous partner, Ms Amanda Haggert, your previous employer and others, you experiencing 'turns' or déjà vu episodes and the impact that they had on your behaviour between 2016 and 2018.  In December 2016 you lost your job with Parkers as a truck driver after driving your truck off the road into a bog, with no memory of having done so.  There was evidence from Ms Haggert regarding her observations of you and your condition over this period, including:

·An occasion of you experiencing one of these turns and subsequent erratic driving;

·Your deteriorating mental state due to your non-compliance and irregular taking of your prescribed medication and arguments that ensued between you regarding this issue;

·That you would become confused and disorientated following these incidents and you would often complain of severe headaches in the period preceding a turn;

·The increased frequency of such turns in the months leading up to this incident.  That you would be disorientated for quite some time and have no recollection of what had happened and arguments regarding your medication continued.

20Your last assessment review with Dr Moey prior to this incident was on
16 February 2018, about a month before it happened.  At the time you spoke with Dr Moey about reducing your medication and he indicated it was not appropriate and explained to you the importance of your current dosage. 
Ms Haggert gave evidence that at this assessment she understood from you that you had not revealed the full extent of your condition to Dr Moey; that you were fearful you would lose your licence if you had done so.

21You did not advise your employer or your neurologist, or other relevant regulatory body, of any of your seizures or instances of blacking out between 2016 and 2018.  As an experienced truck driver who was required to disclose and attend medical assessments to maintain fitness for driving such heavy vehicles you were well aware of the potential relevance of those episodes.  Given your job you were also aware of the real risk to others on and off the roads if you suffered an episode whilst you were driving and in control of the prime mover.  The jury were satisfied that you failing to advise relevant others of the extent and frequency of your episodes might impinge on your ability to drive on 14 March and that you failed unjustifiably, and to a gross degree, to observe the standard of care a reasonable person would have observed in all of the circumstances.

22You deliberately withheld information from the relevant authorities and employers in circumstances where you knew that to do so would have led to your licence being cancelled.  You did this to enable yourself to continue driving so as to enable you to continue to earn an income.  In further submissions filed on your behalf it was submitted that you were taught to work hard and provide for yourself and that you had done that all of your life.  This was not put forward as an excuse but as providing some explanation for your conduct.

23Mary Driver was aged 56 and a much loved wife, mother, sibling, grandmother and school teacher.  At the time of the incident she had retired and was visiting Australia for a family wedding.  She was seeing the sights of Victoria having travelled from Croston; Lancashire, England, accompanied by her husband, Marcel.

24I received victim impact statements from each of the surviving passengers, drivers of the other vehicles and of a worker at the scene.  I also received victim impact statements from those close to Mary Driver including her husband, children and siblings.  Some of the statements were read by the author, some read by the prosecutor, and others were not read aloud.  I take all of that material into account.  I will list the victim impact statements that have been received:

·From Marcel Driver, who suffered injuries and is the husband of Mary Driver;

·Rebecca Scarisbrick, who is the daughter of Mary Driver;

·James Driver, who suffered injuries and is the brother of Marcel Driver;

·Juliet Milner, who suffered injuries and is married to James Driver;

·From Jonathan Driver, the son of Mary Driver;

·From Anne O'Connor, the sister of Mary Driver;

·Thomas O'Connor, the brother of Mary Driver;

·John McDermott, the son in law of Mary Driver;

·Elizabeth Driver, the daughter of Mary Driver;

·Robert Davie, who suffered injuries and was the driver of the Mercedes;

·Donald Risk, the driver of the Tipper; and

·From Stephanie Russell, a worker at the site.

25The statements express deep felt sentiments and serve as a reminder of the grief endured by adult children without their mother in experiences and occasions in their lives.  Similar emotions are expressed by siblings who have lost their sister and, most poignantly, by a husband who has lost his wife.

'The time we promised ourselves together and earned over a life of toil was ripped from us in a second.  Every family celebration we have is a reminder of your loss, that ability to resolve a crisis, that witty comment and, in my case, that person to come home with and reflect on our fortunes'.

26In addition to the overwhelming impact of Mary Driver's death the statements set out the impact of other injuries personal to those involved.  The physical and emotional trauma both have been significant.  From a physical perspective:

·Marcel Driver still requires physiotherapy and has other complications attributable to the injuries he suffered to his back and ankle;

·James Driver suffers the consequences of his neck injury and also has issues with short term memory and loss of taste and smell;

·Juliet Driver required surgery and physiotherapy.  She still suffers neck and hip pain;

·Robert Davie outlines his injuries and lists the impact on his daily life.  He concludes:

'Prior to the accident I had a totally independent lifestyle.  Now I'm dependant on many other folk to try to maintain some semblance of that lifestyle.  This really frustrates and annoys me greatly because of an accident that should never have happened'.

27All describe the emotional impact of their involvement, with one describing it as 'a violent experience'.  One only needs to look at the photographs of the aftermath to have an understanding of the distressing and horrific consequences as a result of you driving this day.

Personal Circumstances

28As to your personal circumstances I received a report from Gina Cidoni, forensic psychologist, dated 8 July 2021, and from your employer at Tabeel.  I take that material into account.

29You are currently aged 62 and resided in Mount Gambier.  Both of your parents are deceased and you have a sister who lives in Yorkshire.  You were married in 2001 but separated in 2007.  You have maintained a good relationship with the mother of your two children.  Your current partner has supported you through these proceedings and whilst you have been in custody.

30You were educated in Sheffield, England, and commenced employment as an apprentice welder/boilermaker at the age of 17 for about two to three years.  You obtained a truck driver's licence in 1980, when aged 21, and worked in your father's business.  You gained significant experience in maintaining and driving trucks travelling in Scotland and England.  You were used to long overnight drives and continued working in this business after it was sold, until about 1990.

31Between 1990 and 1998 you had different jobs in manufacturing then you moved to Australia for your wife's work as a pharmacist in Millicent, South Australia.  You returned to truck driving in about 2002 or 2003 and have consistently been employed in that field up until March 2018.  You have been described by your employer as having a strong work ethic and being a responsible, reliable and capable driver.

32When aged 30 you were the subject of a serious assault in the UK.  In around 2001 you started experiencing what you described as déjà vu and consulted a neurologist.  You were prescribed sodium valproate.  Evidence of this medical condition was given by Dr Sungaila and Professor Cook during the course of the trial.

33You suffered from PTSD as a consequence of an accident that you were involved in whilst driving your truck in 2011 which had resulted in the death of two people.  There was no suggestion you were at fault in respect of that matter and you received counselling through TAC as a result of that accident.

34As to your current psychological state Ms Cidoni noted that as a result of this incident you have struggled to cope with the fact that you caused the loss of life and you have experienced some suicidal ideation, though that has now passed.  She opined that there was no sign of any current perceptual disturbances such as hallucinations, delusions, thought alienation or passivity experiences, though you did express persistent low mood.  She thought you displayed good insight and judgment and had a high capacity for self-reflection.  Ms Cidoni was of the opinion that you presented with complex post-traumatic stress disorder (PTSD) and a major depressive disorder according to the DSM, with symptoms as set out in her report.

35You have never had any issues with drugs and you describe yourself as a social drinker.

36You have no criminal history, though you have a number of traffic infringements, some in South Australia, with penalties recorded as loss of demerit points or fines between 2006 and 2018.  You also have a subsequent matter of driving whilst suspended or disqualified on 27 June 2018 from Mount Gambier Magistrates' Court.  These are matters clearly relevant in circumstances where you drive trucks for a living.

37It was submitted that you will find prison more burdensome given:

·Your age and concern, given your father's death at a relatively young age, that you may suffer the same fate.  I note that there was no medical material in support of such a submission;

·Ms Cidoni's diagnosis of you as suffering PTSD and a major depressive disorder; that this will impact on your time in prison and would likely have a detrimental impact on your diagnosed conditions.  I accept your current functioning will make prison more burdensome for you and your condition may worsen in custody and I take that into account.

38I take into account the uncertainties still associated with COVID and restriction on prisoners both in respect of the availability of programs, access to visits and freedom of movement within the custodial setting.  I also take into account your family and friends are in South Australia and the difficulties of them visiting you in this state both because of COVID and distance.

Remorse

39I accept you are experiencing genuine remorse.  Such was evident from your presentation in the course of your interview with police and is consistent with your responses and assessment by Ms Cidoni, who noted you were devastated by your actions and consequences.  The prosecutor submitted that this should be considered in the context of your subsequent matter of driving whilst suspended, though it was not challenged that you had expressed genuine remorse.

40It was conceded by the prosecutor that as a consequence of your offer to plead guilty to lesser charges there was a utilitarian benefit in the sense that the time required for the trial was significantly lessened, the trauma of some of the witnesses to give evidence was avoided and it reflected, to some degree, acceptance of responsibility for your conduct.  I take that and your remorse into account.

41As to your rehabilitation prospects:

·You have a strong work ethic and have maintained employment.  It is unlikely though that you will be able to work as a truck driver again, given your medical condition;

·You have the support of your ex-wife and have a good relationship with your children and with your partner.

42The charge of culpable driving causing death attracts the standard sentencing provisions in s5A and s11A of the Sentencing Act.  The relevant standard sentence is eight years.

43The standard sentence for an offence is one where the Act specifies the appropriate sentence for an offence in the middle range of seriousness, taking into account only objective factors affecting the relative seriousness of that offence.  Objective factors are to be determined by reference to the nature of offending and without reference to matters personal to you.

44There are a number of factors that are relevant to the objective gravity of your offending:

·You were aware of a period of time that you had issues with driving.  You had at least a period of months, if not years, to disclose the extent of your medical issue.  I regard your moral culpability as high;

·This was more so, given the nature of the vehicle of which you had control.  This is an important feature of the seriousness of this case because of the inherent dangers to other road users in you taking the risk of driving knowing you had not been forthcoming with relevant information;

·Accepting that speed, drugs and alcohol were not involved, these features are of less significance in this case, given the size of the vehicle and the probable consequences of death or serious injury to others; and

·The consequences or impact on all victims and their families in respect of this case have been significant.  I also take into account the number of victims.

45The prosecution submitted that these matters were such that there should be little, if any, deviation from the standard sentence, whilst your counsel submitted that assessment of objective factors amounted to a finding of less than middle range.

46I take the standard sentence of eight years into account as one of the factors relevant to the instinctive synthesis of imposing a sentence.  It is a guidepost to be considered along with the maximum penalty in determining an appropriate sentence.

47I was provided with some cases where the standard sentence provisions were operating and applied to other instances of this offence.  They provide some guidance, though all cases depend on their own facts and circumstances.

48The offence of culpable driving is a very serious offence.  Negligently causing serious injury in the circumstances of a devastating incident involving a number of victims is also serious.  The regulatory requirements under which you were operating were to provide a mechanism for protection of other road users to ensure that those who have the control of vehicles like the prime mover are responsible and honest in their disclosure of their capacity and health.  You were not in this instance and there were dire consequences.

49General deterrence is a significant consideration, as are factors of denunciation and just punishment.  Specific deterrence and protection of the community are also relevant.

50A term of imprisonment is the only option for the court in this case.  The only issue is the head sentence and the non-parole period.  It was not submitted under s11A that the non-parole period should be anything other than that in the statutory formula.

51I have endeavoured in these reasons to identify fully the facts, matters and circumstances which relate, in my judgment, to the appropriate sentence.  I have taken into account all of the matters I am required to consider under s5(2) of the Act, including the standard sentence.  I have taken into account mitigating factors which apply, and principles of totality, and by process of instinctive synthesis arrived at the sentence that I have.

52In respect of Charge 1, culpable driving, you are convicted and sentenced to a term of imprisonment of nine years.

53In respect of Charge 3, negligently causing serious injury, you are convicted and sentenced to a term of imprisonment of two years.

54In respect of Charge 4, you are convicted and sentenced to a term of imprisonment of two years.

55In respect of Charge 5 you are convicted and sentenced to a term of imprisonment of two years.

56And in respect of Charge 6  you are convicted and sentenced to a term of imprisonment of two years.

57Six months of the sentences imposed in respect of Charges 3, 4, 5 and 6 will be cumulative on the sentence imposed in respect of Charge 1, leaving a total effective sentence of 11 years with a non-parole period of nine years.

58All of the offences for which you are before me are a serious motor vehicle offence and I must disqualify you from obtaining a learner permit for a period of not less than 24 months.  In respect of each charge you will be disqualified, and you will be disqualified from obtaining a further licence for a period of six years and you will be required to be re-licensed only on the order of a magistrate.

59What's the pre-sentence detention please?

60MR CORDY:  It is 345 days not including today, Your Honour.

61HER HONOUR:  All right.  I declare pre-sentence detention of 345 days.  Are there any other matters?

62MR CORDY:  No, Your Honour.  That appears to cover it.

63MR TURNER:  No, Your Honour.

64HER HONOUR:  Thank you.

---