Director of Public Prosecutions v Carter (pseudonym)
[2016] VCC 1173
•12 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID CARTER (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 & 9 August 2016 |
| DATE OF SENTENCE: | 12 August 2016 |
| CASE MAY BE CITED AS: | DPP v Carter (pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1173 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Culpable driving causing death
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Tran [2002] 4 VR 457
Sentence: 5 years’ imprisonment, non-parole period 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Silbert QC | Office of Public Prosecutions |
| For the Accused | Mr K. McDonald | Stary Norton Halphen |
HIS HONOUR:
1David Carter[1], you have pleaded guilty to one count of culpable driving causing death, pursuant to s.318 of the Crimes Act 1958. This offence carries a maximum penalty of 20 years' imprisonment.
[1] David Carter is a pseudonym
2You were born on 24 January 1998 and you are currently aged 18. You were aged 17 at the time of the offending. You did not have a driver's licence but held a learner permit, a condition of which was to have a blood alcohol concentration of zero when driving.
3Cooper Dean Ratten was born on 6 March 1999 and was aged 16 years at the time of the offending.
4In summary, the essence of the offending is that at approximately 3 am on Sunday 16 April 2015, a Volkswagen Tiguan was being driven by you at high speed south on Glenview Road in Yarra Glen. You had both alcohol (at a blood alcohol concentration of 0.084%) and the illegal drug MDMA (commonly known as “ecstasy”) in your system. Another youth, Thomas Evans, also 17 years of age at the time, was seated in the front passenger seat. You failed to negotiate a bend and left the road, rolling the vehicle several times. Cooper Ratten, who was seated in the rear, was ejected from the vehicle and catapulted through the air for a substantial distance. He died as a result of the injuries sustained in the collision.
5By way of background, on the evening of Saturday, 15 August 2015, a function was held at the local football club. Several people attended at the Evans’ house prior to the function, including you, Cooper Ratten and Matthew Davies. Davies, who was 18 years of age, was driving his sister's Tiguan which he secured in the garage with the keys in the ignition. Evans' mother was away and there was no parental supervision at the premises.
6After arriving at Evans' house, Davies went to a nearby hotel and bought a slab of beer and a ten-pack of alcoholic cider. Over the course of the evening Davies drank approximately nine of the stubbies and the cider was consumed by Evans and by you.
7At approximately 7.15 pm some of those present who were of legal drinking age went to the local hotel, where they remained for a short time before going on to the football club. Those who were under 18 walked directly to the football club a little later.
8You and Evans took the remaining cans of cider to the football club and drank them at an old scoring box on the other side of the oval because, being under 18, you could not drink at the function. Several witnesses reported seeing you drinking alcohol prior to and at the function that evening, including Evans who saw you drinking beer.
9You four boys remained at the football club until approximately 12.15 am on Sunday 16 August, when you returned to Evans' house. There were about 15 males and females present and you all continued to socialise.
10At approximately 2 am, Davies went to sleep at Evans' house. He had not given anyone permission to drive his sister's car.
11Sometime between 2 am and 3 am, Evans, you and Cooper Ratten got into Davies' vehicle, which was still parked in the locked garage at Evans' house with the keys in it. You said you were going for a drive. The captain of the under 18's football team told you to get out, that it was not your car and that you were underage. Your older brother got angry and took the keys from you, telling you that you were idiots and not to do it again. It is not known where he put the keys.
12Prior to 3 am, you boys obtained the keys and got back into the car. You,
Mr Carter, were the driver. You were later seen to have trouble reversing down the driveway by a neighbour across the road, and had to keep driving forward to straighten up. It was an extremely foggy night with low visibility.13You drove through the neighbourhood until you got to Glenview Road, which is a fairly straight, flat, rural road. The surface is sealed bitumen and given the absence of a speed limit sign, the speed limit is 100 km per hour. You sped up once you got onto Glenview Road despite the foggy conditions. Driving into the fog at fast speed given the conditions, without headlights, you failed to negotiate a slight bend and lost control of the car which rolled end over end.
14Cooper Ratten was seated in the back seat without a seat belt and was thrown approximately 65 metres from the vehicle as it rolled. You and Evans were able to self-extricate through the front passenger window.
15At the time of the collision, the occupant of 324 Glenview Road, Stephen Dynes, was awake. He described hearing the sounds of a vehicle travelling very fast. Dynes states: "I had only been awake for a few moments and heard a car travelling from the King Street end of the road and it was travelling towards my house - I could hear that it was absolutely flying. By flying I mean that I could hear the engine screaming and the car coming towards the house. I then heard a series of loud thumping sounds, maybe four or five - it was like bang, bang, bang, bang and was loud."
16When Dynes heard these sounds, he grabbed a mobile phone, jacket and torch and drove his vehicle towards the collision scene to render assistance. When he arrived at the scene, he was approached by Evans who told him that he could not find his mate Cooper. Dynes telephoned 000 to request an ambulance.
17Whilst Dynes was on the phone to 000, he, Evans and you frantically searched for the third occupant of the vehicle. The weather conditions at the time made it difficult to search, due to the thick blanket of fog that covered the scene.
18A short time later, Cooper Ratten was located some distance from the final rest position of the vehicle. Paramedics arrived and commenced urgent treatment. Resuscitation attempts were unsuccessful due to the critical nature of the injuries he sustained.
19At the scene you furnished a sample of your breath by means of a Preliminary Breath Test. Your Preliminary Breath Test reading at the scene was equivalent to 0.084%. You were transported to Box Hill Hospital for treatment.
20Blood taken from you at hospital was analysed and found to contain approximately 0.06 mg/L of MDMA, the illicit drug commonly known as ecstasy.
21Dr Morris Odell, a forensic physician, was asked to comment on your blood toxicology and the effects such levels would have on your ability to drive a motor vehicle. He offered the following opinions:
a) You were driving after having consumed alcohol and MDMA.
b) You had a total body alcohol content at the time of the collision equivalent to a blood alcohol concentration between 0.135% and 0.168%. Based on the preliminary breath test result, it is likely that the actual blood alcohol concentration at the time of the collision was lower than this range and it may have been slightly less than 0.084%. The precise blood alcohol concentration whilst driving cannot be calculated on the basis of the information available.
c) Your driving skills would have been adversely affected by the effects of alcohol at a blood alcohol concentration in the ranges described above. The impairment of driving skills attributable to alcohol have been compounded by the effects of inexperience and youth.
d) The blood level of MDMA was low and may have contributed to the total degree of impairment, together with alcohol and inexperience.
22The matter resolved to a plea of guilty to culpable driving following the committal hearing on 22 April 2016 at which four witnesses were called. In my view, it can be considered as a plea made at an early opportunity. The detail of the more precise speed of driving immediately prior to the vehicle leaving the road was a legitimate forensic issue, dependent upon complex differing calculations by different reconstruction experts. There is a dispute and the defence expert witness puts the range between 97 and 123 km per hour. In the end the issue was resolved sensibly and appropriately. The relevance of the speed is determined on the basis that it was "too fast in the prevailing conditions”.
23I will now turn to your personal circumstances.
24As I have indicated you are now aged 18 and you were aged 17 years at the time of this offending virtually one year ago.
25You have no history of breaches of the criminal law.
26You are the youngest of five children: your mother unfortunately died when you were aged five and these days you have little recollection of her. In the early days it was clear to others that you missed her very much. It thereafter fell upon your father and your older siblings to raise you. You are all very close and supportive.
27You proceeded normally though primary school and secondary school to Year 10. You formed part of a large friendship group and participated actively at football and other sports.
28After leaving secondary school, you undertook a VCAL program at TAFE for Year 11, intending to obtain an apprenticeship in electric technology for a career in refrigeration mechanics. In your final TAFE exams you obtained the highest score in your class. 2015 turned into a gap year because of issues concerning the obtaining of an apprenticeship. You had been working on a casual basis with an electrical firm whilst you were studying and since the collision you have continued to work with them when your injuries settled.
29You have played football regularly throughout your youth and distinguished yourself in various grades.
30Your health has been good, with the exception of a susceptibility to asthma attacks, occasionally acute. The asthma is presently controlled with appropriate medication.
31As a result of the collision, you suffered a broken neck, being a fracture of the C5 vertebra. You narrowly missed quadriplegia. As a result, you were fitted with a neck and head brace for two to three months, fastened to you with bolts. Your sisters helped you clean the wounds daily and every two weeks you had to return to hospital for more detailed cleaning, repacking and tightening of the brace. You have recovered, however still suffer general soreness and occasional pain.
32A psychological report from Mr Patrick Newton was tendered on your plea. Mr Newton reported that you do not suffer from any significant symptoms of mental health disorder. You have normal intelligence and thought processes and you have no personality disorder. Prior to the collision you had regularly engaged in binge-drinking at social events and after sporting activity, but otherwise had not indicated physical dependence on alcohol or other drugs that you had occasionally experimented with. You reported that you had reduced your alcohol drinking and have abstained from using drugs since the collision.
33Mr Newton did conclude however that test results indicated deep-seated feelings of powerlessness and hopelessness with the sense that you had lost control of your life and future direction. Mr Newton opined that a perceived low level of emotional distress might be due at least in part to the effects of unresolved trauma. This was considered as an immature way of avoiding being overwhelmed by the full emotional distress which engaging with your current circumstances would entail.
34Whilst well socialised, Mr Newton concluded that you were quite immature for your age and that detailed evaluation suggested that you are almost certainly experiencing more intense distress than you are willing or able to acknowledge. These issues are likely to resurface after you are sentenced. In a custodial context you will be more vulnerable to negative influence from hardened criminals and there would be some risk that your personality development could be diverted into more pathological paths.
35Numerous character references were also tendered. It is clear that you are widely regarded as a popular and well-respected young man, a natural sportsman, trustworthy and courteous with a good work ethic and considerate and respectful of others. A number of the references have observed you as having become more withdrawn, quiet, sad, less confident and reclusive since the collision.
36Those that have spoken with you directly about the collision have noted your emotional response and remorse.
37You have written an open letter addressed to the Ratten family apologising for your actions and expressing your deepest sympathy for their loss and hurt.
38In mitigation, I accept the submissions of your counsel and in particular:
· Your plea of guilty and the remorse you have expressed
· Your youth
· Your otherwise good character
· Your work ethic and willingness to help others
· The support you have from your close immediate and extended family
· Your prospects of rehabilitation, which I assess as good
39Nevertheless, your conduct of driving in the circumstances in which you did, is obviously serious.
40The result is that a decent, talented and much loved young man with his adult life just ahead of him has needlessly been killed. Family and friends have been broken-hearted and lives will never be the same again.
41The victim impact statements speak eloquently of the tragedy and loss experienced. They are powerful and moving documents that disclose the devastating consequences of this type of offending.
42The basic purpose for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
43In determining the balance necessary in the sentencing discretion, I have had regard to the seriousness of the offence, guided by the maximum penalty imposed by Parliament, and current sentencing practices, your level of culpability, the various authorities to which I have been referred by both prosecution and defence, the impact of the offence on the victims, your personal circumstances and matters in mitigation and the other factors referred to in the Sentencing Act and the Children, Youth and Families Act.
44I am mindful of the principle that in the case of a young first offender, rehabilitation is usually more important that general deterrence and that such an offender is not to be sent to an adult prison if that can be avoided.
45It is also important to note that, as Callaway JA expressed in R v Tran [2002] 4 VR 457 at paragraph 14,
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicized is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
46You are currently aged 18 and being 17 at the time of the offence were still of an age considered by the law as a child. Because of your young age you are eligible to be sentenced as a child within the principles of sentencing under the Children, Youth and Families Act and by way of a Youth Justice Order.
47I have considered these options in the context of all the circumstances, and in particular with reference to Mr Patrick Newton's assessment of your immaturity. However, the maximum term of detention that can be directed for a Youth Justice Order is three years. Because of the serious nature of this offence and your culpability, I consider that a sentence is necessary which, by its effect, will exceed the maximum period available for a youth justice centre order.
48Because of your youth and other personal factors in mitigation, including your prospects of rehabilitation, I accept that the principle of specific deterrence requires less emphasis, but is not eliminated. The sentence imposed however must reflect the court's condemnation of this type of offending. General deterrence, which is making an example of this case in order to deter others who might be minded to offend in a similar way remains important.
49There are cases where the allowance for youth must give way to other considerations. This is one. The nature and gravity of the offence, involving a decision to drive somebody else's car without permission, unlicensed, whilst affected by alcohol and an illicit drug, at high speed in the context of conditions of thick fog, at night, with poor visibility, without headlights and after having been warned - not once but twice - not to drive, represents significant moral culpability.
50Whilst the speed, in normal circumstances, might not be regarded as high and the blood alcohol and illicit drug levels were not gross, it is those factors, together with the other circumstances of aggravation to which I have just referred, which combine to reflect the complete nature of your offending.
51Balancing the competing considerations, I am first satisfied that no sentence other than a sentence of imprisonment properly reflects the purposes for which the sentence is imposed. The combination of youth and other mitigating circumstances of this case however call for consideration of an amelioration of that sanction. Your youth, inexperience, remorse and otherwise good character suggest to me that time actually spent in the confined custody of an adult prison, could be corrosive and counter-productive to your otherwise good prospects of rehabilitation. That rehabilitation is ultimately in the best interests of the community.
52Accordingly, as part of the sentence I will respectfully recommend that the Adult Parole Board immediately consider your position in the adult prison environment and suitability for transfer, if appropriate, to a Youth Justice Centre.
53David Carter, will you now please stand.
54On Charge 1 of culpable driving causing death you are convicted and sentenced to five years' imprisonment.
55I direct that the minimum term that you serve before being eligible for parole is three years.
56I recommend that the Adult Parole Board immediately considers your transfer to a Youth Justice Centre.
57Pursuant to s.89(1) of the Sentencing Act 1991, I order that any driver's licence or permit held by you is cancelled from today, and I disqualify you from obtaining a licence for a period of 42 months from today.
58Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed is six and a half years' imprisonment, with a non-parole period of four and a half years.
59At the plea hearing, the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, the order is by consent and the making of the order is in the public interest.
60I also need to inform you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, 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. Do you understand that, Mr Carter?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: Thank you, you may be seated. David Carter may now be escorted from the court, thank you.
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