Director of Public Prosecutions v Carroll
[2016] VCC 1919
•9 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01813
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES CARROLL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2016 | |
DATE OF SENTENCE: | 9 December 2016 | |
CASE MAY BE CITED AS: | DPP v Carroll | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1919 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous Driving Causing Death
Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Road Safety Act 1986
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan Mr S. Milesi | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms J. Condon SC Mr J. Behan | Stary Norton Halphen |
HIS HONOUR:
1 James Carroll, on 2 December 2016, you pleaded guilty to one charge of dangerous driving causing death that arose out of a motor vehicle collision that occurred at Melton on 26 October 2014. The maximum penalty for this offence is ten years’ imprisonment.
2 You admitted one prior conviction by way of a traffic infringement notice for driving a motor vehicle while prescribed concentration of drugs was present in blood or fluid which offence occurred on 25 November 2012. Additionally, however, on 24 June 2015, subsequent to the instant offending, you were sentenced at the Sunshine Magistrates’ Court to a Community Correction Order for a period of 24 months with conditions in respect to: robbery and recklessly causing injury committed on 13 June 2014; robbery, a threat to inflict serious injury and recklessly cause injury committed on 11 August 2014; reckless cause injury, criminal damage and contravention of a Family Violence Intervention Order committed on 22 September 2014; and unlawful assault, criminal damage, contravention of a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order and robbery committed on 13 October 2014.(see Exhibit 6). It should be noted that you were not charged with these offences until after the instant offending and that you were proceeded against by way of charge and summons.
3 Further, tendered as Exhibit 4 was a report from the Department of Justice and Regulation dated 25 November 2016 that deals with your progress under the Community Correction Order. You have been non-compliant with the order in that there have been a number of unacceptable absences and your non-compliance prompted those supervising you to conduct a compliance conference on 2 February 2016 and later issue you with a caution on 14 April 2016 due to continued non-compliance. Further, on 12 March 2016, you were charged with theft and I was informed on the plea that whilst that matter has not been dealt with, you intend to plead guilty to that offence. It is likely that breach proceedings will follow that event.
4 Tendered as Exhibit A on the plea and read aloud in Court was the summary of prosecution opening. In summary, you were observed at the intersection of Black Dog Drive and Coburns Road, Melton in your red Commodore sedan, which was stationary beside a black sedan driven by a man named Moody. A witness deposed that your car was in the eastbound carriageway facing in the correct direction, whilst Moody’s car was in the westbound carriageway of Black Dog Drive but facing in an easterly direction and that the two of you were arguing.(see depositions p.43) Thereafter you executed a left hand turn into Coburns Road to travel north. You were closely pursued by Moody. You came to a stop at the red traffic light in Coburns Road at its intersection with the Western Freeway westbound exit ramp. Moody stopped his car behind yours and immediately got out of his car and ran towards your car. As that occurred, the traffic control signal applicable to you turned green and you accelerated away. Moody returned to his motor vehicle and pursued you. Both cars passed over the freeway overpass and you overtook slower moving cars, changing lanes as you did so. At the time, the speed limit in the area was 40 kilometres per hour owing to the area being a road construction zone and your speed at time of collision was estimated at 67 kilometres per hour.
5 As you travelled north, you approached the intersection of Coburns Road and Barries Road. The traffic lights at this intersection were red to you and you travelled into the right hand turn lane of Coburns Road that was free of traffic in order to overtake cars stopped in the right hand lane of Coburns Road at the red traffic light. You then manoeuvred your car back into the extension of the right hand lane of Coburns Road travelling north and there your vehicle collided with a motor vehicle driven by David Smith. David Smith had entered the intersection of Coburns Road and Barries Road from the west or your left in compliance with a green traffic control signal. Mr Smith died of his injuries at the scene of the collision.
6 A preliminary breath test was conducted on you at the collision scene and returned a negative result. You were subsequently interviewed under caution at the Major Collision Investigation Unit at Brunswick during which you told police that Moody had cut you off at the intersection of Black Dog Drive and Coburns Road as you attempted to enter that intersection and that you were pursued by him throughout the course of your travel which ended at the collision scene.
7 You told the police that generally there was no reason why Moody should bear any antipathy towards you, save that you were then dating his former girlfriend. You told police that when Moody got out of his car and approached yours at the intersection of Coburns Road and the westbound exist of the Western Freeway, he had something that looked like a trolley pole in his hand. You said you were driving pretty erratically in order to get away from Moody. You maintained to police that you were scared when you were pursued by Moody.
8 As it would happen, one of the cars travelling north along Coburns Road was equipped with what was described as a “dash cam” that recorded views to the rear and the front of that car. Footage from the dash cam was tendered as Exhibit D. I have watched this footage on a number of occasions and in respect to Moody’s action of getting out of his car and approaching yours, I am unable to say whether he was armed in any way. What I am able to say is that, as Moody returned to his car, he appeared to pick something up from the centre median strip. According to one witness, Ms Becket-Thorpe, she observed that when Moody got out of his car, she saw at least one of his shoes come off. I infer from that observation that the object that Moody picked up as he returned to his car was one of his shoes.
9 As to the issue of the trolley pole, the driver of the taxi carrying Ms Becket-Thorpe, observed Mr Moody leave his motor vehicle but did not observe him carrying any weapon, although this may be because of his position on the roadway in Coburns Road. (See depositions page 6, Line 29)
10 The witness, Mr Micallef deposed in his statement that whilst stationary facing west in the westbound exit from the Western Freeway at its intersection with Coburns Road, he observed that the driver of what he described as a blue Commodore looked to have a thin silver bar protruding out of the driver’s window.(see depositions p.63) Despite my repeated viewing of the dash cam footage, I am unable to see this object.
11 As to the issue of the existence of a weapon held by Moody, the quality of the dash cam footage is unable to resolve this issue. On balance, I am prepared to find that Moody was armed with a trolley pole. Further, it is plain that Moody’s conduct was aggressive and directed towards you, both when he was out of his car and whilst he was driving it.
12 Viewing the dash cam footage however, it is plain that as your motor vehicle approached the northern edge of the freeway overpass and its intersection with the eastbound exit ramp of the Western Freeway, Moody’s car was well behind yours and maintained its path in the right lane of Coburns Road as it approached the intersection of Barries Road and came to a stop behind a line of stationary traffic in the right hand lane of Coburns Road facing a red traffic control signal.
13 Whilst it is plain that Moody bore you ill will and was acting aggressively towards you and drove close to your motor vehicle prior to you becoming stationary at the intersection of Coburns Road and the westbound exit of the Western Freeway, thereafter, whilst Mr Moody was pursuing you, he was many metres behind you and he did not follow you into the right hand turn lane of Coburns Road.
14 Whilst I accept on balance that you were scared of Moody and what he might do to you, the objective circumstances of your situation were that you were in a motor vehicle and unlikely to be physically assaulted should you have remained in it.
15 Objectively speaking, your driving is at the higher end of the type of driving that is seen as the foundation for a charge of dangerous driving causing death, in that you were driving at 27 kilometres or so above the speed limit for the area, you entered an intersection against a red light and did so by driving past stationary traffic in the right hand lane of Coburns Road whilst travelling in the right hand turn lane. You did so in traffic conditions that could be described as between moderate and heavy. However, your belief that you were being pursued was well founded. Your fear was based in fact, although the actual threat that you faced, in my view, was not of the kind that you perceived. These matters, however, cannot be judged to a nicety and this is particularly so when viewed in hindsight.
16 Of concern is your assertion to the police at interview that Moody cut you off at the intersection of Black Dog Drive and Coburns Road because I accept the evidence of the taxi driver, Mr Kerridge that both cars were stationary at that intersection facing east and you and Moody were arguing.
17 Your level of fear and what it caused you to do mitigates of your conduct because it reduces your moral culpability. However, whilst it tempers the objective circumstances of your driving, it does so only to a small degree.
18 Tendered as Exhibits E, F and G were the victim impact statements of Shirley Preddy, the mother of the deceased David Smith, and his two brothers Glenn and Garth Preddy. The consequences of your offending on each of these people has been profound. You have fractured a family. You have robbed Mrs Preddy, a woman in poor health, of her carer, who was her son and companion. Her health and general wellbeing has deteriorated as a result of the loss of her son. You have left a gaping hole in her life and that of her two sons and their families. In addition, the comfort and support that David Smith provided to his mother now falls to her remaining sons, one of whom lives in Rutherglen.
19 Garth Preddy gave up work in order to support his mother through her long period of grief. He has a wife and young family, and all of the pressures and responsibilities that flow from normal family life. Added to that now is the additional responsibility of the care and support of his mother, a role that was performed by his brother, a role and relationship that both his brother and his mother enjoyed.
20 By your driving you put a number of people at risk. You drove at a speed in the order of 27 kilometres per hour over the speed limit. Your driving was erratic, and it is plain that you must have had knowledge of the risks associated with your driving and in particular the manoeuvre of entering the intersection of Coburns Road and Barries Road against a red light by passing a line of stationary cars in the right-hand lane of Coburns Road via the vacant right-hand-turn lane.
21 Tendered as Exhibit 3 was the report of Stephen Gault, psychologist, dated 17 November 2016. Your personal history was set out in the report and relied upon by your counsel, Ms Condon of Senior Counsel. You are presently twenty-two years of age and were twenty years of age at the time of your offending. You were born in Williamstown and moved with your family to Melton when you were aged eight years. You are the youngest of four children, and have a positive relationship with your parents and your childhood seems to have been a happy one.
22 As to your education, after completing Year 9 you obtained employment as a plasterer. However, not long into that job you suffered an injury as a result of a fall from a scaffold. You returned to school in Year 10 but left halfway through that year to commence an apprenticeship as a roof-tiler, which you completed by the age of eighteen years. You ceased that work in 2013 due to your methylamphetamine abuse. Thereafter you had casual work with Sleepmaker, as a bricklayer working for an uncle, as well as working as a factory labourer with Hickory Construction. Since the offending you have worked on a casual basis for H & R Roofing on average four days per month.
23 You have a long history of substance abuse. You first commenced to smoke cannabis when you were thirteen years of age, and you reported to Mr Gault that at the time of the commission of the instant offending you smoked cannabis two or three times a week.
24 You first used methylamphetamine when you were seventeen years of age. Your usage gradually increased over time because of your relationship with a young girl, Megan, who was also an abuser of methylamphetamine. You reported to Mr Gault that you ceased using methylamphetamine altogether when your relationship with Megan ended about three weeks prior to the instant offending. However, you resumed your relationship with Megan in February 2015 and you once again became a regular user of methylamphetamine. In June of this year your relationship with Megan ceased for a second time, and you reported to Mr Gault that your use of methylamphetamine did as well.
25 Mr Gault opined that he could find no indication that at the time of the offending you were suffering from a mental illness, or that you suffered from any cognitive impairment. Further, Mr Gault opined that you do not suffer from a psychiatric condition that would increase the burden of imprisonment on you. Accordingly, you are an appropriate vehicle for the application of the principle of general deterrence.
26 Of concern is that you said to Mr Gault that you thought the collision was 110 per cent Moody’s fault. This statement was somewhat ameliorated when you told Mr Gault “I won’t say that I had no part in it [the accident]”, and that you were happy to accept whatever punishment is coming to you for your offending.
27 You undertook several alcohol and drug courses in the months immediately after your offending, and since March of this year you have received counselling from Mr Leigh Cowley, whose report dated 16 November 2016 was tendered as Exhibit 2 on the plea. Mr Cowley writes that you have expressed genuine remorse to him for your offending.
28 Of note is that on 3 June this year, after being questioned by police about family violence matters, you locked yourself in a room with a kitchen knife and threatened suicide. You were arrested by police and taken to hospital without incident. Mr Gault’s opinions are held in the full knowledge of this incident.
29 Your counsel submitted that the appropriate sentence in your case was a community correction order, and acknowledged during the plea that this would be an uncommon or lenient disposition, if not a merciful one in all the circumstances. However, it was submitted that it was appropriate because of your age, your early plea of guilty, your progress in respect of drug rehabilitation, and the counselling that you have undertaken. Further, that you have a supportive family, you have expressed remorse to Mr Cowley as well as your two referees (see Exhibit 5), and that your moral culpability is reduced because you were being pursued by Mr Moody.
30 Dangerous driving causing death is a serious offence and is punishable by ten years’ imprisonment. The objective circumstances of your offending are at the upper end of the range. These circumstances, however, are mitigated to some extent by Moody’s conduct and your reaction to it. Despite that, the application of the principles of general deterrence, denunciation and just punishment must be at the forefront of the exercise of my sentencing discretion despite your relative youth which normally places rehabilitation as the most important sentencing factor in the sentencing exercise. However, young men often fall to be sentenced for offending of this kind and as a consequence rehabilitation as a sentencing factor takes less prominence in the sentencing exercise than it otherwise would.
31 You are a young man. You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow from that plea, being that it has utilitarian value and that it is some evidence of your remorse. You have expressed remorse for your offending conduct to your counsellor and your referees. You have a supportive family. However, your history of drug abuse and your criminal record, together with your poor performance whilst undergoing a community correction order, compel me to regard your prospects of rehabilitation as guarded.
32 By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing this kind of crime. Taking into account the circumstances of your offending and the effects of your offence, with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to three years and six months’ imprisonment, and I fix a period of two years’ imprisonment before you will become eligible for parole.
33 I declare that you have spent seven days by way of pre-sentence detention.
34 I cancel all licences and permits held by you under the Road Safety Act and I disqualify you from obtaining any such licence or permit for a period of two years.
35 Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to five years’ imprisonment with a non-parole period of three years.
36 Mr Carroll, would you please stand? The Crown have made application for a forensic sample under s.464ZF(2) of the Crimes Act and I have granted that order in the form of a scraping of your mouth. The reasons for me granting that order are the seriousness of the circumstances of your offending warrant the order and that the prior convictions of the respondent are such as to warrant the making of the order and that the granting of the order is in the public interest. I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force when you are asked to do so, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of the order.
37 MR METESI: If Your Honour pleases.
38 MR BEHAN: As Your Honour pleases.
39 HIS HONOUR: Are there any other matters?
40 MR METESI: No, Your Honour.
41 MR BEHAN: No, Your Honour.
42 HIS HONOUR: Remove the prisoner.
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