Director of Public Prosecutions v Charlton

[2019] VCC 723

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01079

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIE CHARLTON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 May 2019
CASE MAY BE CITED AS:	DPP v Charlton
MEDIUM NEUTRAL CITATION:	[2019] VCC 723

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Ms S. Lacy	James Dowsley and Associates

HIS HONOUR:

1Julie Charlton, you have pleaded guilty to one charge of dangerous driving causing death.  That crime carries a maximum penalty of 10 years' imprisonment.

2You are now 55 years of age.  I accept that you pleaded guilty at the earliest reasonable opportunity and indeed there has been a considerable delay since that first offer to plead was made.  I accept that you have appropriate and indeed powerful remorse and as you counsel pointed out to me on a number of occasions you are effectively riddled with guilt.  You must also of course get that utilitarian benefit of that plea of guilty.

3The situation was that you were originally charged with culpable driving and an offer to plead to this charge was made prior to the committal.  That was rejected, the matter proceeded and whilst you had not been charged for some six months or so, that is not abnormal.  What has arisen, though, is since the committal before getting an acceptance of the plea by the Crown an extended period of time has elapsed.  It seems to me the Court of Appeal in Borg pointed that this is situation which should be avoided if at all possible.  In any event, I accept that that delay in your situation has been of real significance, in that it has caused distress and a continued ongoing anxiety, in terms of being unaware of what the future held for you.  I take those matters very much into account.

4You do have prior convictions.  Two, indeed, for 0.05 or exceeding the breath limit.  They are now of some antiquity, but they do exist and they are on the record.

5A summary of the offending is that on the late afternoon of 5 January 2017 a fatal motor vehicle collision occurred at the intersection of Hazelwood Road and Church Road in Hazelwood North.  The driver of the other vehicle was killed.  That was a Mr Pooly, who as I understand it was in his early 50s and had just started full time employment elsewhere.

6This is a situation where there is no victim impact statement, I understand from the Crown that his family feel unable to do so.  So I am left in the circumstance where I really know nothing about Mr Pooly.  But he is not to be treated as a statistic, that is for sure.

7In any event, you were in a 2001 Toyota Land Cruiser station wagon.  You had a full licence, you were alone in the vehicle, except for your dog.  You were towing a double horse trailer with a horse in it and travelling east towards the intersection.  Mr Pooly was in 1987 Toyota Forerunner station wagon.  I point out from the outset that subsequent to the accident of each of yourself and
Mr Pooly were tested, there is no suggestion of drugs or alcohol or anything of that nature.

8But in any event what happened was that you were driving towards the intersection.  That intersection is controlled by stop signs, which were erected facing applicable to drivers on Church Road approaching the intersection from both directions.  At that point in time Hazelwood Road was a duel two lane highway.  I do not really need to go into the detail of that.  Church Road was a duel lane, two way bitumen carriageway in a good state of repair.  Went in a general east-west direction, road orientation at the intersection was slightly north-west, south-east.

9On the side of the intersection you were approaching the east and west bound lanes are separated by double white longitudinal lines, which commenced approximately 400 metres west of the intersection and continued to stop line.  Broken lines separated east and westbound traffic prior to the commencement of the double lines.  A 100 kilometre speed restriction was in place and there is no suggestion either of you was exceeding that.  There were no edge lines and the bitumen surface directly abutted gravel shoulders.  The road was flat and street for approximately three kilometres.

10There were three sets of tactile line markings, known as rumble strips, situated across the eastbound lane of Church Road on approach to the intersection.  Each set consisted of five raised, evenly spaced, perpendicular lines across the eastbound lane.  The first set of rumble strips commenced approximately
372 metres west of the intersection.  There was a road strips advisory sign erected some distance prior to the commencement of that first set of rumble strips and I can fairly safely assume on a dead straight, flat piece of road that that sign had been visible for some distance prior to arrival at it.

11The second of the rumble strips commenced approximately 293 metres from the intersection and the third approximately 248 metres from the intersection.  There are three advisory warning signs erected on approach to the intersection on both sides of the road facing the direction of traffic in which you were facing.

12The first sign was approximately 280 metres from the intersection, was erected on the northern side of the road approximately at the cessation of the first set of rumble strips and consisted of the words, 'Reduce Speed', in white writing on a red background.  The second and third signs were advisory stop sign ahead warnings and were directly opposite each other on both sides of the road.  These signs consisted of a red-white octagonal stop sign symbol with a black upward pointing arrow, indicating ahead on a yellow diamond shaped sign.

13There are two regulatory stop signs erected at the intersection on both the north and south sides of Church Road.  They were erected facing applicable to eastbound traffic.  There is a slid white line marking across the eastbound lane of Church Road at the intersection.

14There is also a large directional advisory sign erected at the intersection on the northwest corner.  That sign was erected approximately four metres from the stop line and consisted of predominantly white lettering on a green background, indicating that it was Hazelwood Road and the number of that route.

15At the time of the collision it was a clear day, the road surfaces were dry and visibility was good.

16A lady who had been driving in the opposite direction to you said that approximately 1 kilometre west of that intersection, in the vicinity of Titree Road, a vehicle being driven by you came on to the wrong side of the road for a second or two.  It is clear that that vehicle was yours.  She said as it got nearer to that car it started to gently veer onto her side of the road, you came on her side of the road totally and there was nowhere for her to go.  As a result she slowed her vehicle to about 80 kilometres and started to flash her high beams at your vehicle in an attempt to get your attention.

17As I have indicated she agreed at the committal apparently that you were on her side of the road for one to two seconds.  She said that your vehicle corrected pretty sharply, go back on the proper side of the road.  She said she was concerned by it and saw a female in it.  Apparently at committal she said that that incident occurred what would appear to be about four minutes prior to the collision.  But whether that is accurate or not, I do not know.  There seems to be no dispute that it was your vehicle and I have to place more faith I think in her description as to where she was, in terms of distance rather than time in a situation such as that.

18The fact of the matter is that that is of some concern.  I do not obviously attribute it directly to the collision, but it would indicate that certainly in the preceding minutes prior to the accident there is something that distracted you to the point where you are on the wrong side of the road.

19In any event, you simply entered the intersection.  You did not brake.  The deceased braked heavily, causing the wheels to lock.  In effect, I do not need to go through all the details of this.  Your vehicle and the horse float t-boned the driver of the other vehicle and he died at the scene.

20You at that time had in operation a GPS location pin on a phone.  There is no suggestion that you were making phone calls or receiving text messages or anything like that at the time of the event.  You have asserted that the application of the GPS was providing vocal directions to assist you.

21When you were interviewed by police afterwards you said,

'I was just driving the car and before I knew it that stop sign just flashed through and I knew I was in trouble'.

22You said you just had no idea as to what had occurred.

23The situation here is that having now viewed, which I assume is at about regulation speed, a video of the approach to that intersection this cannot be regarded in my view, despite the admissions made so strongly on your behalf, as a momentary inadvertence.  The failure to see the stop signs and the visual warning signs, the failure to feel or hear the rumble strips, for someone who is used to driving in this type of area, seeing as you come from Koo Wee Rup is extraordinary.  I am not going to try to find any reasons as to how this all came about, but the circumstances are that there must have been a loss of concentration or observation of the road.  Something in the order of about 20 seconds to have travelled all that distance without noticing any of those warning signs.

24The situation is in the country that if you go through a stop sign at the sort of speeds - and legitimate speeds that people drive at and you hit somebody, someone is going to get killed.  That is why general deterrence plays such an important part in this sentencing process.

25As I say, I know very little of anything about Mr Pooly but when one looks at these matters so far as general deterrence is concerned that could have just as easily have been a car full of children that was going through that intersection.  People have to be deterred from this sort of driving, whether it be deliberate or whatever.

26It was put before me that you may have had other things on your mind and simply not concentrating.  That may or may not be the case and the circumstance where these intersections are dangerous and that is in fact why so many devices are put in place to endeavour to stop people entering them at speed and ending up with results such as this.

27I have seen a number of - number, I have seen quite a lot of comparative cases and obviously every case sits in its own set of circumstances.  It seems to me that one of the major circumstances with those cases where a non-custodial sentence was involved were that the situation could be described as a genuinely momentary lack of judgement.  I do not really think that is the case here.

28I have indicated there is no victim impact statements before me, but one does not have to be a clairvoyant to understand the devastation of the death of any person would cause upon a family, if indeed Mr Pooly has a family.

29The Crown conceded somewhat generously, in my view, that a combination sentence was in range.  Your counsel strongly submitted on your behalf in a considered plea that a community corrections order would in itself be sufficient.

30I have before me a number of references and indeed a lady gave sworn character evidence on your behalf.  I take those matters very much into account.  I also have before me a number of reports from a psychologist, Ms James;
Mr Cummins, a psychologist and also a psychiatrist, a Ms Jones, and again I take those into account.  I will direct that they remain on the court file so anybody with a genuine interest can read through them.

31The situation is that you have two children with whom you remain close.  You have an elderly mother, I accept that you are very concerned about her situation.  She is now in her 80s and I take into account the effect that being absent from her would have upon you in such a situation.  It does not given rise to exceptional circumstances, but obviously would be a great deal of anxiety for you.  I take into account the question of separation from your children.  As I understand the material two weddings have been put off awaiting the outcome in this, which again I refer back to the delay which in my view should be unnecessary in these circumstances.

32Your counsel submissions pointed out the family structure in which you live.  I am not going to go into them we did them during the course of the plea, because they do not really affect me, those earlier prior convictions.  Others might take a different view, but I do not.

33Effectively in 1999 you began working at the Koo Wee Rup Regional Health Service, you worked in a care hostel, you struggled with that and had stress related symptoms back in 2008.  You were treated with antidepressant medication by a GP, who I have a report from.  You ceased work for 12 months at that stage due to anxiety and depression.  You returned to work part time.  2009 you were seeing a psychologist.  2011 the psychiatrist, Dr Eileen Jones, whose report I have read.  In August 2011 you were laid off from work and a claim was made.

34This all occurred, as I have said, on 5 January 2017.  I accept that you prior to this had had a hard time of it.  You were not in good mental health, you had had concerns by medical practitioners as to your state.  There is a suggestion that you had a post-traumatic stress disorder from circumstances arising from work.  It is clear from the reports that have been - or references that have been filed on your behalf that you have been for many years a vigorous and helpful member of your community.  You clearly have worked in a situation of caring for others and that work history, as long as it lasted, certainly, was highly commendable.

35It is this situation now at 55 where I do not think childhood matters really come in to it.  Mental health history, as I have indicated, I have taken into account.  You remain in contact, as I said, with your children and you have been involved in the riding and grooming of horses for most of your life.

36The report from Dr Cummins and the report from the others indicate that a custodial sentence would undoubtedly cause a deterioration in your mental health.  Certainly, the principles involved of numbers five and six, if they can be described that way, in Verdins are matters which I take clearly into account.  I think they are a genuine concern.

37The circumstances of James, the psychologist, essentially involved you trying to come to terms with the situation from your initial assessment into late 2018.  She described you as having suffered stress to the, 'Extent of utter despair, not being able to face her future'.  I accept that there is intense grief at the result of all this.

38You were distressed over how your mother could be looked after if you were to be imprisoned and you have a fear that your mother would die while you were in gaol.  Since this has all occurred you have been hospitalised on more than one occasion, as I understand it, and a CAT team has certainly been called on at least one occasion because of concerns about your state of mental health.  I accept from that report that she,

'Still suffers with extreme anxiety, depression, stress and very low self-confident.  Has improved in some areas but remains anxious about where her future holds'.

39I accept that report in the sense that a gaol term would cause you severe anxiety.

40Mr Cummins essentially says that there has been a post-traumatic stress disorder brought into existence subsequent to the collision and that obviously has to be taken into account as a punishment for you.  There have been fleeting thoughts of suicidal ideation and Mr Cummins described you as presenting with moderate anxiety and said, 'that you were riddled with feelings of guilt and remorse'.  He expects that your mental health will deteriorate certainly in the short term if incarcerated and I have to accept that that is in fact the case.  I accept that at the time all this occurred you were under stress and possibly ruminating about other matters.

41The fact of the matter is though that general deterrence has to play a large part in all this.  The offending is serious.  As I said, this was certainly not in my view a momentary aberration.  It went over an extended period of time and a man is dead as a result of it.

42Whilst specific deterrence in your situation is probably of little significance, general deterrence, denunciation and appropriate punishment have to play a significant part.  The risk of your reoffending, well I would hope would be low.  The prospects of your rehabilitation are really up to you and what assistance can be given to you.

43As I say, I have seen a number of comparative cases and it seems to me that the one that is closest, in terms of a factual situation is the decision of Pan, which was His Honour Judge Mullaly in fairly recent times.  The Crown here have made the concession that a combination order is within range and accordingly I have no intention of giving a sentence of the order that Judge Mullaly gave in that.  The circumstances are very similar and I am in this situation going to impose a custodial sentence.  Virtually, well, pretty much for the same sort of reason as Judge Mullaly.  I am not going to sit down and go through an analysis of each and every case.  As I said, each one depends on its own set of circumstances.  Counsel have pointed out to me that in Pan there are in fact two victims and that is correct.  But of course an additional sentence was imposed for the other.

44I am well aware of all the principles outlined in Neethling and the cases that have followed that.  Yours is not a situation, as far as I am aware, of a deliberate putting people at risk and there is no intoxication.  There is not suggestion of competitive driving or any of those matters.  It is just simply a situation where you are driving with a horse float on the back with a horse in it, in a country area and you either ignored or for reasons totally unaware to me were unaware of a whole series of warning signs all designed towards stopping what actually then occurred.

45In all those circumstances, I have just taken the view that a combination sentence is the sentence that I impose.  As I say I think it is a somewhat generous concession.

46Accordingly, if you agree, you will be placed on a community corrections order.  Because I am imposing a custodial sentence I am not going to impose work hours, I think that is gratuitous.  What I will simply do is that the community corrections order, if you agree, will be with conviction, obviously.  It will be three years duration and it will contain - the only provision that it will contain will be that of mental health.

47Having viewed the objective seriousness and balancing that against your personal circumstances it is my view that a custodial sentence of some significance has to be imposed and accordingly will be one of nine months.

48MR DEVLIN:  The court pleases.

49HIS HONOUR:  There's no PSD, is there?

50MR DEVLIN:  No, Your Honour.

51HIS HONOUR:  If you wouldn't go down to the dock with my associate, thanks, Mr Dowsley.  Also there is a 464 order which I have just made.

52MR DEVLIN:  Thank you, Your Honour.

53HIS HONOUR:  What I will do, Mr Dowsley, I will give you a few minutes.  That sentence stands upon entry of that document.  I simply say this so that client and the family understand that had she pleaded not guilty to this I would have given her three with a minimum term of 18 months.  I will just leave the Bench.

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