Director of Public Prosecutions v Cairns

[2021] VCC 2020

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00791

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS CAIRNS

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Mildura
DATE OF HEARING:	25 November 2021
DATE OF SENTENCE:	8 December 2021
CASE MAY BE CITED AS:	DPP v CAIRNS
MEDIUM NEUTRAL CITATION:	[2021] VCC 2020

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW – Sentence

Catchwords:              Dangerous driving causing death – Dangerous driving causing serious injury – Early plea of guilty – Evidence of remorse – No prior convictions – Mental illness present at the time of sentencing – Custody management

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] 16 VR 269; DPP v Neethling [2009] 22 VR 466; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 12 months’ imprisonment, followed by a Community Correction Order for 2 years.

Driver’s licence cancellation and disqualification - 18 months.

Section 6AAA declaration: Conviction and total effective sentence of 3 years imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D O’Doherty	Office of Public Prosecutions
For the Accused	Plea: Mr C Morgan Sentence: Mr Hilton-Wood	Hilton – Wood Solicitors

HER HONOUR:

1Nicholas Cairns, you are to be sentenced today for one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury.

2On 25 August 2020 you finished work for the day and met your partner, Emily Seymour, and her mother to look at a property.  You and Emily were looking for a home to purchase together.  Having looked at the first property Emily suggested going to look at a house she had seen on a real estate website.  This property was on Twenty First Street, Mildura. 

3To get there, you drove down Deakin Avenue and had to cross Twentieth Street.  Ms Seymour was navigating for you.  Approaching Twentieth Street, the speed limit on Deakin Avenue was 100 kph.  Prior to Twentieth Street, at the intersection of Deakin and Nineteenth Street, Deakin Avenue had the right of way at the intersection.  Following Nineteenth Street, there were a number of roads and driveways off each side of Deakin, again with Deakin having priority so that the other traffic was required to give way.

4535 meters before Twentieth Street, a roadside sign warned the traffic moving in the direction you were on Deakin Avenue that there was a “Give Way” sign 500 metres ahead.  Approximately 200 metres from the intersection a second similar sign again warned of the approaching Give Way sign.  The photos show that the Give Way signs on either side of Deakin Avenue at the intersection of Twentieth Street were clearly visible.  The white lines corresponding to the Give Way signs were also visible.[1]

[1]Photograph 9, Depositions page 188

5You did not see either of the warning signs, nor did you see the Give Way signs at the intersection of Deakin Avenue and Twentieth Street.  You continued driving through the intersection, without slowing, traveling at a speed between 92-108 kph.

6Tragically, at the same time you were passing through the intersection, a car driven by the victim of the second offence was driving west on Twentieth Street.  That driver, Lisa Hayes, had the right of way, and she drove through the intersection, no doubt assuming that the traffic on Deakin Avenue would give way to her.  She was driving at a speed somewhere between 75 and 88 kph.  The front of her car struck the passenger side of your vehicle.  Both cars spun into the nearby paddock.

7A number of other motorists stopped to assist.  You were able to get out of your car, and you immediately went to try to help Emily.  She was unconscious but breathing.  One of those who had stopped to help was on the phone to 000 and on their direction, when Emily stopped breathing, she was removed from the car and CPR started. 

8The driver of the other car, Ms Hayes, was initially unconscious, but recovered consciousness at the scene.  Her young son, who had been secured in a child safety seat, was unharmed.

9Police and paramedics arrived at the scene of the collision, but Ms Seymour was not able to be saved.  She was pronounced dead at the scene, having suffered catastrophic injuries to her torso and head.

10Ms Hayes was conveyed to the Mildura Base Hospital and treated for multiple fractures to her vertebrae and sternum, and serious ligamental damage to her neck, which required her to wear a “halo’ brace for a number of weeks.  She has no memory of the collision and has not provided a Victim Impact Statement.  You have accepted, by your plea, that her injuries were substantial and protracted.

11You also were injured, and treated first at Mildura Base Hospital then the Alfred Hospital for serious but not life threatening injures, including a ruptured diaphragm, internal bleeding and a fractured scapula.

12At the time of the collision, you had not been drinking nor had you consumed drugs.  You were not speeding nor had you been driving erratically.

13One you had been released from hospital you were interviewed by the police.  You said that you had never driven that far down Deakin Avenue, that you could remember, and that you did not see the advisory signs, nor the give way signs.  The only explanation you could offer was that you had been distracted by looking for the house, and you mistakenly assumed that Deakin had the right of way, as was the case at earlier intersections on the drive down that road.  Although you were not specifically asked in the interview, it appears you did not see Ms Hayes car prior to the collision.[2] 

[2]Transcript of Record of Interview conducted 13 October 2020 Q&A 81 – 83, 156-157; Depositions page 53

Victim Impact

14Emily was 23 years old when she was killed in this collision.  She was part of a network of friends and family who all valued and loved her.  She had a master’s in social work and was employed as a social worker for Mallee Family Care.  She loved her family and friends, including you Mr Cairns, and was especially close to her sister, Bonnie.  She had interests including dancing and aerial Yoga, and was setting up a space to teach that discipline to others. 

15Victim Impact Statements from four of Emily Seymour’s family were read to me in the course of the plea.  Each was a moving account of the trauma of learning of Emily’s death, and the difficulties each person has had in dealing with their grief for the loss of a beloved daughter and sister. 

16Emily’s mother has described the joy you and Emily found in each other and planning your future together.  She feels not only the devastation of her loss, but is also compassionate for your grief.  The intense grief she feels has impacted her ability to work in her usual high pressured job.  Whilst she is doing things to try to deal with her loss, this process is slow, and she has good and bad days.  

17Emily’s father told the Court of the broad ranging effect of the traumatic loss of his daughter upon his life.  He too has found his work has suffered, and he finds it difficult or impossible to enjoy things, such as a motorcycle club in which Emily had also been involved.  He is angry and grief stricken.  Emily’s stepmother has also been hit hard by this tragedy, and does her best to deal with her own grief, whilst supporting Emily’s father.

18Emily’s sister told me of her close and loving relationship with Emily, and the bond that had continued between them throughout their life.  She has been profoundly affected by the traumatic loss of her younger sister.  The many emotions she is assailed by impact almost every aspect of her life, affecting her social life, personal life and her employment.  Sadly, she states that she feels worse now that she was four or five months ago.  She said:

Emily and I would talk everyday, she was my best friend and my number one confidant. Words can't express how much I miss her or what her absence feels like in my life. But I imagine it would feel like if someone separated a soul from a body, I am the shell left behind and my soul is wherever she is. The world feels like a different place without her in it.

Personal Circumstances

19You are 36 years old and were 34 at the time of the collision.  Your family moved to Mildura when you were 7, and you have effectively lived here all your life.  You completed school satisfactorily, you had had good friends and enjoyed normal teenage activities.  Having finished Year 12 you were unsure of what career you wanted, but at age 21 started a Graphic Design course which you competed.

20Since then you worked in that field.  As I understand it you have a good employment history, and some of the letters of support which were tendered on the plea speak of the help you have given various friends over the years utilising your expertise to assist their businesses. 

21The letters provided on your behalf evidence that you are a loved and valued member of your family and friendship network. A number of these people wrote that since this collision and Emily’s death you have withdrawn from your previous social contact and are more reclusive. 

22All of your referees spoke well of your character, you are described as honest, generous, selfless, kind-hearted, and loyal.  It is a good reflection of your character and way of life that so many people have been prepared to write to the Court on your behalf.

23This collision and the loss of your partner Emily has had a very significant effect upon you.  You suffered significant injuries in the collision and were transported from the Mildura Base Hospital to the Alfred Hospital for treatment.  You were discharged from the Alfred on 2 September 2020 and were then under the care of your GP.  In October 2020 you started seeing a psychologist and were prescribed medication to deal with your anxiety and depression.

24Your work has suffered, and you have not worked since April 2021, due to the fragile state of your mental health. 

25The psychologist you saw from October 2020 reported that you presented with symptoms of depression, anxiety and post-traumatic stress disorder.  You were struggling to get out of bed each day and find any purpose in life. You have found it difficult to talk about the collision and about Emily, due to your overwhelming sense of grief and responsibility for her death.[3]  This may explain why you have not directly apologised to her father, which is a source of anger for him.

[3]Exhibit D6, Report of Ms Bernadette Hodgson dated 17 July 2021

26Even with the passage of time and 16 sessions with that psychologist you continued to suffer a range of symptoms which impaired your ability to work and function in daily life.  Your treating psychologist considered that the prescribed medication was not effectively assisting your mood, and she had raised a referral to a psychiatrist to further help you.

27Your treating psychologist’s descriptions of your mental state are reflected in the references provided for you.

28A forensic psychologist interviewed you for the purposes of preparing a report for your plea hearing.[4]  You presented as very sad, and often tearful.  She reported that your “thoughts were preoccupied with grief and devastation at [your] loss of [your] partner, a sense of overwhelming lack of future and life prospects, guilt and sadness.”[5]  You reported a strong sense of guilt if your mood ever lifted from the general low state in which you live.

[4]Exhibit D3, Report of Dr Mirabel McConchie, clinical psychologist, dated 21 August 2021; Exhibit D4, Report of Dr Mirabel McConchie, clinical psychologist dated 20 November 2021

[5]Exhibit D3, page 3.

29Dr McConchie diagnosed you as suffering a Persistent Complex Bereavement Disorder, with a range of symptoms causing clinically significant impairment of your social and work functioning.[6]  She also diagnosed you as suffering Post-Traumatic Stress Disorder, with the symptoms causing a “total and significant negative effect on [your] occupation and social functioning”.[7]  She summarised your state as follows:[8]

Mr CAIRNS has presented as an extremely traumatised and devastated man since the accident where his partner of two and half years died. His grief is still highly acute and his sense of any control over his life or future has been severely impacted. Mr CAIRNS is constantly overcome and overwhelmed by significant despair and guilt at being the driver. Mr CAIRNS and his partner were in a happy, loving and supportive relationship and had demonstrated obvious care for each other and their future together. This accident has left Mr CAIRNS with inescapable pain and nothing could have more impact and consequence than the loss of one’s partner in such circumstances.

[6]Exhibit D3, pages 3-4.

[7]Exhibit D3, page 4.

[8]Ibid.

30Dr McConchie recommended you continue to receive treatment.

31In a supplementary report Dr McConchie gave the opinion:

Mr CAIRNS has barely been able to maintain adequate levels of self-care and routine functioning since the accident. His mental state is considered extremely fragile and the constant re-experiencing of reminders of the accident through both physiological reactions, sleep disturbances, limited concentration and also the constantly heightened anxiety combined with a deep sadness and sense of loss of future. Mr CAIRNS’ mental health renders him highly vulnerable to a further deterioration if he is incarcerated.

His existing severe level of post-traumatic stress would be worsened by the added trauma of being away from any supportive family and may lead to such a degree of hopelessness that suicidal ideation and planning becomes a part of his clinical picture. PTSD is understood to be highly associated with impulsive behaviours, high rates of suicide and ongoing poor coping with poor prognosis. It is unlikely that Mr CAIRNS will be able to participate in a meaningful psychological therapy whilst in such a traumatised state.

32Counsel submitted that the last sentence of that opinion reflected not only the effect imprisonment would have on your ability to engage meaningfully with such treatment, in view of the likely deterioration in your mental health, but also that your access to the same treaters, with the same level of care, would be interrupted.

Sentencing Act 1991 s 5(2H)

33In view of the opinion of Dr McConchie in her supplementary report it was submitted on your behalf that the exception set out in s5(2H)(c)(ii) was established, that is that your mental health means that you would be subjected to substantially and materially greater than ordinary burden or risks of imprisonment.

34The prosecutor did not seek to persuade me that that exception had not been made out.  Rather he submitted that even accepting the psychologist’s opinion, in all the circumstances of this case a sentence involving a term of imprisonment with a non-parole period was called for.

35I accept the opinion of Dr McConchie, and that the exception in s5(2H)(c)(ii) is met. I will consider what sentences are appropriate by the application of ordinary sentencing principles.

Factors in Mitigation

36I take into account the following matters in mitigation of your sentence:

(i)First, you have pleaded guilty and did so at an early stage in the proceedings.  Your plea has had real utilitarian benefit to the community, the court, and to the surviving victims of this offence.  The weight in mitigation is all the greater in view of the effect of the pandemic on the operations of the Court; ^[9] 

(ii)Secondly, I accept that your plea reflects your remorse for this offending.  The letters from your friends, the reports from Dr McConchie and Ms Hodgson show that you are deeply remorseful for having caused the death of Ms Seymour;

(iii)Thirdly, you have pleaded guilty knowing that you may go into prison, and knowing that your time in prison would be more difficult due to the pandemic, as well as your mental state;

(iv)I accept that you have excellent prospects for rehabilitation. You have no prior of subsequent involvement with the criminal law.  You do not drink to excess or use illicit drugs.  There is nothing about your life before or after this collision to suggest that there is any real risk that you would come before the courts again for some criminal matter.  I do not consider that the principle of specific deterrence requires any weight in the sentencing discretion, in your matter;

(v)Any term of imprisonment will have a significant adverse effect on your mental health, and your mental state will make any time in custody much harder than for a person not suffering as you are.  This gives rise to real moderation of the sentences I will impose;[10]

(vi)Whilst not specifically raised, in view of your mental health I do not consider that you are an appropriate vehicle for the full weight of general deterrence.  I have also considered the evidence of Dr McConchie in considering what type of disposition is called for; and

(vii)Finally, I take into account that you have caused the death of your partner, the woman with whom you were planning a life, that you are deeply affected by this, and that you will bear this burden for the rest of your life.

[9]Worboyes v The Queen [2021] VSCA 169, [35]-[39]

[10]Verdins & Ors v The Queen (2007) 16 VR 269

Other Sentencing Considerations

37The principles articulated and adopted by the Court of Appeal in sentencing for these offences bear repetition:[11]

1. The 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.

2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.

3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.

4. The courts must tread warily in showing leniency for good character in such cases.

5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.

[11]DPP v Neethling (2009) 22 VR 466, [28]

38Whilst you are not a youthful offender, you are a man of otherwise good character, and these principles apply to you. 

39Other principles which are relevant are general deterrence, denunciation and just punishment.  Drivers must understand that if they do not pay attention not only is there a real risk of causing serious harm to others, but also that they will be likely to face serious criminal consequences.  Furthermore, the sentence must reflect that your inattention has caused the death of one person, and seriously injured another.

40In assessing the gravity of these offences, I have considered both the objective facts of your driving, and also your subjective culpability.  Objectively, you failed to keep a proper look out, for more than 500 metres, in an area you were not familiar with, driving at close to 100 kph on a country road and failing to observe and avoid the other car.  You put at risk your passenger, and those in other vehicles on the road, here Ms Hayes and her son.  Although not a busy urban road, this was also not a remote area.  The speed at which you were driving, although within the speed limit, increased the potential harm that could be caused to others.

41Subjectively, you did not intentionally flout the rules of the road or ignore the signs.  You were distracted by the conversation with Ms Seymour, but not otherwise impaired in your ability to drive or have control of your vehicle.  On the other hand, when driving on an unfamiliar road, at close to 100 kph, it was imperative for you to keep a proper look out, but you did not, and did not do so for at least 500 metres.

42Whilst it is the case that no circumstances of aggravation such as alcohol or drugs, or hoon driving  were present, in all of these circumstances your failure to pay attention was serious.  This was not a momentary lapse, but a sustained lack of attention, in circumstances where the risk of death or serious injury was increased by the speed at which you were travelling.

43I have read and considered the 11 cases, both sentences and Court of Appeal judgments, which were provided to assist me with understanding the range of sentences imposed for similar offending in the last five years or so.  Of course, no two cases are exactly alike, but these cases have given me a broad sense of current sentencing practices for these offences.[12]  A relevant point of difference between your matter and a number of those cases is that I have assessed the gravity of your conduct – both objectively and subjectively – as above the lowest end of the range of offending encompassed by these charges.

[12]See list at Paragraph 7 of Exhibit P2, noting that the prosecution later advised that the matters of DPP v Bell and DPP v Gray have both also been the subject of decisions of the Court of Appeal

44The principle of parsimony requires that I impose a sentence which is no more severe than is required in view of all the sentencing facts and considerations.  In your case I have given anxious consideration as to whether a term of imprisonment is required, or not. I have concluded that a term of imprisonment is required for two principal reasons -  first, I must give due expression to general deterrence, even moderated to some degree for the reasons I have set out earlier and secondly,  the gravity of your offending is not at the very low level which may otherwise justify the imposition of a non-custodial sentence.

45I have also considered whether a sentence combining a term of imprisonment with a community correction order is appropriate, and I had you assessed for such an order.  I am mindful that a CCO is inherently punitive, as well as potentially addressing rehabilitation issues, and that in some cases a properly conditioned order can meet could meet all the sentencing requirements. 

46No sentence will ease the wounds suffered by those who loved and miss Emily.  The sentences I will impose reflect that this is a serious offence by nature – it involves you having caused the death of another person – but also that your culpability is at the lower, although not the lowest, end and that your personal circumstances are significantly mitigating. I am mindful that for a person of your good character and in view of your mental health any period of imprisonment will be shocking and onerous.

47Mr Cairns please stand; on Charge 1 you are sentenced to 10 months imprisonment and on Charge 2 you are sentenced to 6 months imprisonment. I direct that 2 months on the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1, resulting in a total effective sentence of 12 months.

48On both charges following 12 months imprisonment, you will be required to serve a Community Correction Order for a period of 2 years. During which you will have to perform 200 hours of community work and engage in mental health treatment. I will direct that 75 hours of time spent in treatment and rehabilitation can be credited as community work hours.

49You have previously consented to the making of a Community Correction Order. In a moment, I will ask you to sign this Community Correction Order giving your formal consent to this Order.

50Upon your release from custody, after you have served 12 months imprisonment, you must attend at Mildura Community Corrections within 2 working days.

51Finally, I must tell that you that should you breach this Community Correction Order by failing to comply with the terms and conditions of this order or by re-offending, you may be brought back to Court and re-sentenced for this dangerous driving offence and a further sentence may be imposed for the breach.

Other Orders

52Pursuant to s89(2) of the Sentencing Act, having been convicted for these two offences your licence is cancelled and you are disqualified from obtaining a licence for a period of 18 months.  I will make that order on each charge, to commence today.

53Pursuant to s6AAA, if you had not pleaded guilty, I would have sentenced you to 3 years imprisonment with a non-parole period of 2 years.

54In view of the opinions of Dr McConchie and others, there is also concern about a significant decline in Mr Cairns mental health.  I will include in the Orders that there are a number of custody management issues, such as his suicidal ideation as well this being his first time in custody.  As I understand Mr Cairns is currently taking prescribed antidepressant medication, please ensure appropriate documentation is provided to those who will be taking him into custody.

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