Director of Public Prosecutions v Calf

[2020] VCC 353

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-00457

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIONEL CALF

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Ballarat
DATE OF HEARING:	10 – 13, 16 – 19, 23, 25 March 2020
DATE OF SENTENCE:	27 March 2020
CASE MAY BE CITED AS:	DPP v CALF
MEDIUM NEUTRAL CITATION:	[2020] VCC 353

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: 2 charges dangerous driving causing death – 6 charges dangerous driving causing serious injury – pleaded guilty during trial – bus driver of many years – unblemished record - no aggravating features – unexplained momentary inattention
Legislation Cited:
Cases Cited:
Sentence:  3 year Community correction Order  150 hours

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	OPP
For the Accused	Mr T. Danos	John Irwin Solicitors

HER HONOUR:

1Lionel Calf, you have pleaded guilty to two charges of dangerous driving causing death, and six charges of dangerous driving causing serious injury.  The plea was entered towards the end of a trial, when all the prosecution evidence had been heard, except that of the collision reconstruction experts.  The charges arose from the crash of a bus driven by you with 27 people on board, causing the tragic death of two of the passengers, and serious injuries to six others.

2On Wednesday 10 March 2017, you drove the bus from Ballarat to Mildura, transporting the 27 passengers to a bowls tournament.  While in Mildura, you drove many of them to various events, including competitions and dinners and your driving was considered by the passengers to be competent and appropriate.

3On the morning of Saturday 14 March, you commenced the journey back to Ballarat with the same passengers on board.  The previous evening, they had made a presentation to you, thanking you for driving them.  You stopped at Sea Lake briefly to drop off a passenger, then stopped at Donald, and then resumed the journey along the Sunraysia Highway.  It was a sunny day, and according to some of the passengers who gave evidence, it was an enjoyable trip.  Indeed, none of them had any complaint to make about your driving and all felt safe in the bus.

4At 3.04 pm, at the location of Tanwood on the highway, you began to negotiate the bus around a right-hand sweeping bend, but early in that manoeuvre, you failed to maintain the bend, and the bus drove off the roadway to the left, down an embankment and rolled on to its left side.  The roof off the bus was torn off by the impact with a tree, and it continued on its course for some distance, before it came to rest in a grassed area.

5Tragically, one of the passengers, Carmel Mitchell aged 71 died at the scene from her injuries.  Another passenger, Ethel Glennister aged 87 was airlifted to hospital, but she died a week later.  The six passengers who were seriously injured, were women aged between 59 and 83.

6Shirley Broadbent received significant lower leg injuries, requiring plates in her left ankle, and the removal of part of her right calf. 

7Margaret Cosgrave suffered a ruptured spleen, five broken ribs, a punctured lung, significant bruising to her left side and left forearm, and cuts to both hands and to her forehead. 

8Elizabeth Hocking received a C2 fracture, lacerations to her left hand, and numerous scrapes, cuts, and bruises to her face. 

9Loris Gullick had four broken ribs, a broken clavicle and significant bruising requiring treatment.

10Jennifer Shepherd suffered a fractured rib, a haematoma on the right thigh, bruising to the right side of her body, and a short period of unconsciousness caused by a significant impact to the rear left side of her head. 

11Judith Lyons had a broken left ankle, which required permanent metal screws and rods, and she has required ongoing rehabilitation.   

12The injured passengers gave evidence during the trial about the uneventful trip from Mildura, the minutes and seconds before the crash, and the aftermath.  Their accounts of the suffering of many of the passengers as they waited for help, some of them hanging from their seatbelts as the wreck of the bus lay on its side, were harrowing.

13Two passers-by, Colin and Taylor Forster, came to their assistance and gave whatever help they could.  The passengers who were less seriously injured helped others.  You were injured with cuts to your face, and it was said by several witnesses, that you appeared to be in a state of shock.

14Victim impact statements were provided by 23 passengers and family members.  14 of those were read to the court by the prosecutor, and one was read by the writer herself, Christina Pretty, the sister of Ethel Glennister.  Each of the statements written by the family and friends of Mrs Glennister and
Mrs Mitchell speak of the loss of a much loved woman, and of the important contribution each woman made to her family and to the wider community.  The writers took great care in conveying their appreciation of what each woman meant to their immediate families, and to many others.

15Mrs Glennister and Mrs Mitchell, and many of the victims and their extended families were bonded by their enjoyment of bowls, and in many cases by their very long membership of the bowls clubs of this region.  They have all had to endure the long wait until the court process was able to be finalised, and it has taken its toll on some of the victims and their families.  Many victims have been unable to pursue activities that were important to them, and in some cases, their independence has been curtailed.

16Returning now to the circumstances of the crash, the highway at Tanwood is a two lane, two-way road, with a single lane running in each direction, divided by a series of white painted lines.  The speed limit is 100 kilometres per hour.  The road is flat, with the outer reaches of the lanes denoted by single solid white fog lines on the bitumen edge.  There were no audible tactile strips on any of the road lines, but they have now been installed, and there has been some improvement to the bitumen edges of the road.

17In considering the gravity of the offending in this case, the following is relevant.  Immediately after the crash, you spoke briefly to several of the passengers while waiting for the emergency services to arrive.  You asked one witness, if you had, 'Done a tyre' and asked another if you had, 'Swerved to miss something' on the road.  To others, you said you did not know what had happened, or that you thought something had crossed the road, or jumped in front and you had swerved.

18To two other passengers and to two police officers, you said you had tried to dodge or swerve from a kangaroo which had jumped in front.  Some of the passengers said that you had been concentrating on your driving, and that they could see that you were not distracted by anything immediately before the crash.  They had felt confident and safe; nothing had occurred to raise any doubts about your competence as a driver.

19Several investigations into the crash were conducted.  The prosecution position as to sentence was described by Mr Moore as having been based on all the evidence in the trial, including that which had not yet been given, which covers the three expert reports and a video commissioned by the defence. 

20A police reconstruction expert, Dr Hardiman, examined the scene, noting in her report that the tyre marks on the road showed that you had commenced to negotiate the curve by steering to the right before leaving the road, meaning that you were both awake and conscious when the road first commenced to curve to the right.

21Dr Hardiman reported that there was no evidence of a swerving manoeuvre or of steering to the left, nor of any steering to the right to follow the curve, and no evidence of any swerving response by you to bring the bus back on to the roadway, even though in her opinion there was time to do so.  This was despite the fact that she considered the gravel edges to be soft.

22Dr Hardiman also said that you were not exceeding the speed limit, but were travelling at 98 kilometres per hour when the bus first left the road.  There was no alcohol or drugs involved, according to tests done, and no evidence of fatigue.  Your driver log showed that you had had plenty of rest.  The bus had no mechanical faults and the condition of the road did not contribute to the crash in any way.

23None of the witnesses who were awake and observing the road ahead reported having seen a kangaroo or anything to impede the progress of the bus just before the crash.  The investigators found there was no evidence of any animal having been involved.

24A report obtained from VicRoads stated that the lanes of the road were narrow, at 2.9 metres wide and that this was not unusual and not considered hazardous.  The unsealed gravel shoulders were considered adequate.  The video shown in court during the plea hearing, of a bus the same size as the one you were driving, travelling along the same section of highway, showed the width of the bus at 2.5 metres wide, taking up the same space as the lane itself.

25Another expert witness, Dr Rechnitzer, wrote a report at the request of your solicitors.  Mr Danos, who appeared on your behalf, submitted that the issue between the two reports is that Dr Hardiman considered it would have been possible to get the bus back on the road after it failed to take the bend, and that there was, according to statistical possibility, an opportunity of between 2.4 and 2.8 seconds to do that.  Dr Rechnitzer's opinion was that once a bus, a large heavy vehicle was on the gravel, you likely had less than 2.5 seconds in which to do that, which is too short a time. Therefore,
Dr Rechnitzer opined you had no prospect of getting it safely back onto the road.

26Mr Danos pointed to the narrow lane of the road, and the narrow unsealed shoulder identified in the reports, as well as the observations made by
Dr Rechnitzer, that the risk was greatly increased by the steep drop of the embankment, abutted by large trees.  Although there are differences in opinion as to what might have been possible to avoid the crash, there is no dispute that it was caused by your momentary inattention.  There is also no dispute that even accounting for the horrific outcome and the very extensive impact on the victims and their families, the objective features of the crash place it in the lowest category of this class of cases.

27I now turn to your personal circumstances and background, Mr Calf.  You are now aged 71, you were aged 69 at the time of the collision and had been a bus driver since 2009.  Mr Brendan Kosoloff, a company director with
Ballarat Coaches, gave evidence that he employed you in 2009 and he described your wide experience driving various buses and in various circumstances.  He said your driving record is exemplary and you are a hard worker, who was held in high regard by passengers.  There has never been any complaint against you.

28Mr Kosoloff said that according to data collected by the company, he can estimate that you would have driven between 70,000-80,000 kilometres each year.  Despite that long driving career, you have no previous convictions of any sort.  In July 2018, your heavy vehicle licence was cancelled, but after the provision of a medical certificate, it was reinstated, and you continued driving buses until just before the commencement of the trial.  Mr Kosoloff said the company had supported your reinstatement.

29You had begun your career working with the railways where you remained for 27 years.  Mr Ian Getsom, your friend from the railways, attested to your careful and cautious manner as a worker, and said you deeply regret what happened.  In 1990, you were made redundant, and then worked at the University of Ballarat for 17 years, as a cleaner and staff supervisor.  A former work colleague, in a written reference, described you as hardworking, and compassionate, often working long hours to assist with conferences at the university, and helping new students settle into accommodation there.

30Others who know you well describe you as a man of integrity, quiet, and stoic, and likely to be supressing the sorrow and regret you have expressed to some.  I have learned through some of the references that you have had counselling and that may be continuing.

31You have made a significant contribution to the community through your work at Ballarat Bowls, having been on the board of management for most of your 40 years membership of the organisation.  You have been president twice and were due to take on a further role as president when the bus crash occurred.  For the past 15 years, you and others have raised money for the Ballarat Hospital through a bowls tournament.

32You are the father of two sons and a grandfather, and a great grandfather.  After your first marriage ended, you married again, but sadly your wife died of health complications about eight years later.  You later married again, but your wife became ill and died three years ago.  You have been supported in court by family members and friends throughout the trial and the plea hearing.

33By pleading guilty to these charges, you have acknowledged that you drove dangerously.  The collision, which was caused in this manner, resulted as we know in the tragic deaths of two women and the serious injury of six others.  The courts have held that dangerous driving is that which creates a considerable risk of serious injury or death to members of the public and involves a serious breach of the proper management or control of a vehicle.

34In this particular case, your inattention caused the bus to leave the bitumen, and then circumstances combined to bring about your inability or failure to return the bus to safety.  The observations of the experts were such that I can draw the inference that there were inherent difficulties in being able to achieve that, considering the soft edges beyond the bitumen, the size and weight of the bus, and the small time frame of seconds within which it could have been possible.

35Your plea was entered very late in the trial, almost at the end of the prosecution case.  Accordingly, limited weight can be given to its utility, because the trial had proceeded and almost concluded.  However, the need for the jury to continue coming in to court for at least a further week, and to deliberate and to return a verdict was avoided, and that does have some recognisable value to the court and to the community, particularly in the unusual circumstances of the coronavirus affecting all of our private and public lives.  I have taken it into account, in determining the sentence.

36Mr Danos submitted that because of all the circumstances, a Community Correction Order was within range.  The prosecution indicated the same.  In all the circumstances of this case, it is an appropriate sentence, and you have been assessed as suitable.  Would you stand now, please, Mr Calf.

37I impose a Community Correction Order with a conviction for all of the charges.  It commences today and will last for three years.  Apart from the core conditions of the order, the only other order will be that you perform 150 hours of unpaid community work.  Your licence to drive any vehicle is cancelled and you are prohibited from obtaining a new licence or permit for 18 months, which is the minimum requirement according to the legislation.

38The prosecution has applied under s.464ZF of the Crimes Act for an order for a forensic sample of saliva to be obtained.  Mr Danos, I do not believe you had instructions, or not that you conveyed to me about that.

39MR DANOS:  No, I think as the Crown indicated, it was a matter of Your Honour's discretion.

40HER HONOUR:  It is a discretionary matter.  But nonetheless, I am interested if you have any view?

41MR DANOS:  In the circumstances, Your Honour, I would submit that it probably is an unnecessary requirement.

42HER HONOUR:  All right.  You do not want to be heard any further, do you,
Mr Moore?

43MR MOORE:  No, Your Honour.

44HER HONOUR:  No, thank you.  In the circumstances of this case, I will refuse that application.  Now, the Community Correction Order needs to be signed.  So, that can be given to you Mr Danos, so that you can accompany my associate if you wish, to the Dock.  That is completed now.  Any other matters?

45MR DANOS:  No, Your Honour.

46MR MOORE:  No, Your Honour.

47HER HONOUR:  I think I will ask my tipstaff now to adjourn the circuit sine die.

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