Director of Public Prosecutions v Cleary
[2018] VCC 1827
•2 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-01698
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALLY CLEARY |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22, 23 January 2018 |
| DATE OF SENTENCE: | 2 February 2018 |
| CASE MAY BE CITED AS: | DPP v Cleary |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1827 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – one charge of negligently causing serious injury – one summary charge of exceeding the prescribed concentration of alcohol within 3 hours of driving – failure of driver to see a cyclist – 68 year old widow – no prior convictions – 27 year old victim – life threatening injuries – acquired brain injury – victim receiving ongoing treatment
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991
Cases Cited:Harrison & Rigogiannis v The Queen [2005] VSCA 349; Boulton & Ors v The Queen [2014] VSCA 342; Gurovski v The Queen [2018] VSCA 3.
Sentence:Total effective sentence of 30 months’ imprisonment with a non-parole period of 16 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Gibson | Solicitor for Public Prosecutions |
| For the Accused | Mr P. Dunn QC (Plea) Mr R. Galbally (Sentence) | Galbally Rolfe |
Pages 1 - 25
HIS HONOUR:
1Sally Cleary, you have pleaded guilty to one charge of negligently causing serious injury, the particulars of the offending being that by negligently driving a motor vehicle, you caused serious injury to Mr Daniel Alexander on 7 April 2017. The maximum penalty for this offence is a term of imprisonment of ten years.
2You have also pleaded guilty to a summary offence contrary to s.49(1)(f) of the Road Safety Act 1986 of exceeding the prescribed concentration of alcohol in your blood. The maximum penalty for this offence in light of your reading is 120 penalty units or a term of imprisonment of 12 months.
3I turn now to the circumstances of your offending.
4You were living in Flinders on the Peninsula and on Friday 7 April 2017, you and another friend had been invited out for a lunch at a local winery. You were excited at the prospect of going out due, in part, to the fact that having sadly lost your husband some three years earlier, you spent most of your time working in your garden and, as I understand it, rarely socialised.
5You drove your VW station wagon to the Morning Sun vineyard in Main Ridge, arriving at around 12.40 pm in the afternoon. You were there joined by your friend, Sally Moran. There followed a long lunch of talking, eating and drinking whilst you were sitting in the sunshine. Throughout the course of the afternoon your glass was being topped up by staff at the winery. By approximately 6 pm you have been drinking wine over a period of at least four hours.
6On the local roads at this time was the victim of your offending, Mr Daniel Alexander. He was then aged 27. He worked for the National Australia Bank with recent promotions suggesting that he had a bright career in front of him. He lived in Greenvale with his parents, but on this late Friday afternoon was cycling from Melbourne to the Peninsula for a buck’s party weekend in Shoreham. He was an experienced and keen cyclist, riding a Trek road bicycle. He was wearing dark clothing with silver cycling shoes and a white helmet. He did not have any lights on his bicycle.
7You decided to leave the event at the vineyard and to drive yourself home. Upon leaving the winery, your vehicle turned left into Main Creek Road, travelling approximately 1.8 kilometre before turning left on to Shands Road. You drove another 1.8 kilometres along Shands Road before hitting Mr Alexander. The road at this location is a single lane two‑way undivided carriageway running in a general east‑west direction. There were provisions for one lane of traffic to travel in either direction and the road has a steep uphill gradient. The lanes were separated by double white lines painted on the road surface. The road has rural properties on either side. The road is of bitumen construction and in good condition.
8Upon his cycle being struck by your vehicle, Mr Alexander passed over your vehicle, landing on the bitumen some 24 metres from the likely point of impact. In due course emergency services attended the scene. Mr Alexander was airlifted to the Alfred Hospital. I will deal with his injuries later in these sentencing reasons.
9After the collision you stopped some 40 metres or so further up the road, past where Mr Alexander, the rider, had come to rest. You got out of your vehicle and you took a few steps back towards Mr Alexander but did not get closer to him than approximately 30 metres. Fortunately for Mr Alexander, others attended to him.
10Tom Fergusson, a young lad from a nearby property, had heard the collision and came out on to the road, seeing both your vehicle and then the injured rider. He went straight over to Mr Alexander. At the same time your lunch companion, Ms Moran, who was driving home along the same stretch of road as you, stopped her vehicle and got out to assist Mr Alexander. She did not then speak to you. A second passing motorist, Mr Darren Wilcock, stopped and promptly rang 000. He then proceeded to follow the operator's instructions as to the management of Mr Alexander. At this point a third vehicle stopped. This vehicle contained an off duty nurse, Ms Edwina Wiltshire and her partner, Mr Maxwell Bowman. Ms Wiltshire took over the treating of Mr Alexander with the assistance of Mr Wilcock, and Mr Bowman enquired of Tom Fergusson as to who was responsible and you were pointed out. You were at this time still standing near your car further up the road. You then got into your vehicle and drove off.
11Mr Bowman decided to follow you as you drove along Shands Road to the point where you stopped at the intersection of Shands Road and Mornington‑Flinders Road. You had turned your vehicle 180 degrees so that it was no longer facing the direction from which you had come. Mr Bowman stopped his vehicle close to yours. You got out of your car and demanded to know why Mr Bowman was following you. He informed you that he wanted to make sure that you got home safely, whilst being all the while on his telephone to 000.
12At this point another vehicle, driven by Michael Taylor, arrived at the intersection from the other direction. Mr Taylor, noticing the apparent damage to your vehicle, got out of his vehicle and asked you whether you were okay and what had happened. You replied, according to him, "Look down there. I have hit a cyclist." Mr Taylor ran down Shands Road looking for an injured cyclist. Once he had left, you got back into your vehicle and drove away. Mr Bowman followed you. You slowed your vehicle on two occasions but kept on going into Musk Creek Road and then Beechers Way and eventually you turned into your property and drove up to the house. Mr Bowman stopped his vehicle behind yours outside your home. You came over to Mr Bowman and asked, "What are you following me for?” to which he replied that he wanted to make sure that you got home safe.
13Mr Bowman then returned to the scene of the accident and to Mr Alexander. Shortly thereafter he accompanied police back to your property where you were arrested.
14Consequent upon your arrest you underwent a preliminary breath test which was positive for alcohol. You were then taken to Rosebud police station where at 19:28 an evidentiary breath test returned a reading equivalent to a blood alcohol content of 0.174 grams per 100 millilitres of blood. I proceed on the basis that at the time of the collision your blood alcohol content was three and a half times over the prescribed limit for driving a motor vehicle.
15On Monday 10 April you participated in a record of interview. You provided an account of your day consistent with the prosecution factual summary which was opened on the plea and a copy of which is annexed to these sentencing reasons. You frankly admitted that you did not see the bicycle rider prior to the impact and that after hitting him you stopped a short distance up the road. You added that due to other people assisting and to your not having a mobile phone you decided to drive home to ring 000. You did not remember being followed by a witness, this being a reference, as I understand it, to Mr Bowman. Upon arriving home you spoke to a man in your driveway who asked you if you knew what you had done to which you said "Yes, I do." You then went inside and rang your daughter and son but failed to ring 000 because you went into a panic.
16Detective Leading Senior Constable Rob Hay, who is a collision reconstructionist from the Major Collision Investigation Unit (MCIU), provided an opinion stating that:
(i) The collision occurred at sunset;
(ii) There would have been sufficient light to enable you to see the cyclist, Mr Alexander;
(iii) The speed of your vehicle was between 60 to 69 kilometres an hour, this being in an 80 km/h zone, when it struck the cyclist from behind;
(iv) The cyclist, Mr Alexander, has passed over your vehicle;
(v) The throw distance, this being the likely point of impact to the rest position of the cyclist, Mr Alexander, was 24.2 metres; and
(vi) The fact that the cyclist passed over the vehicle indicated there was no braking prior to the collision.
17Senior Constable Matt Crane, an investigator from MCIU, inspected your vehicle on 18 April 2017. He stated that, "my inspection did not reveal any mechanical fault with this vehicle which would have caused or contributed to the collision." Quite simply, Mrs Cleary, you failed to see Mr Alexander.
18I now turn to your personal circumstances.
19You were born on 6 December 1948 and you are now aged 69, and you were 68 at the time of this offending. Your father was a farmer and you grew up with your parents and sibling Caroline on a farm in Murchison in Victoria. At age 11 you were sent to boarding school and then attended at St Catherine's Secondary College, completing your matriculation by correspondence.
20You completed a secretarial course and worked as a secretary at a shipping company for two years before returning to the family farm. At the age of 21 you went overseas to the United Kingdom where you lived and worked in London for a period of 18 months before returning to Australia. You then started working as a personal assistant for an engineer. You held this job for a period of approximately eight years prior to your marriage to Roger Cleary who was an up-and-coming lawyer whom you had met through the course of your employment. You were married in 1977 and in due course had two children; your daughter Kate, born in 1980 and who is now an educational psychologist, married with two children, and a son John born in 1983, now also married with two children, and who works for JP Morgan. No doubt your two children being so well equipped by the love that you have provided were both able to make their way in the world with successful careers and relationships.
21Your husband wished you to be a stay‑at‑home mum. You complied with his wishes and whilst it is clear that you were a devoted, loving wife and mother, and an enthusiastic and diligent participator in all community activities, there is a sense that these roles did not permit you to sufficiently realise the potential that you undoubtedly had.
22Your husband's career continued apace. He joined the Victorian Bar in 1985, and specialised in commercial law. You tended to the home fires, as it were, looking after the children and your family and being involved in the community.
23In 1989 your mother died from cancer and your family then moved to Shoreham, with your husband commuting to Melbourne and you volunteering one day a week in addition to all your other home duties. In 1993 your father died and your family then moved to his property on the Mornington‑Peninsular Road where I am told you have lived ever since.
24In 2010 your husband Roger had a melanoma removed. Tragically the cancer had metastasised and your husband then developed cancer of the brain. Throughout his illness you nursed him and I have no doubt ensured that his passing was as comfortable as could be.
25There was tendered on the plea as part of Exhibit 11SC a report prepared by Dr Mathew Barth, psychologist, dated 19 December 2017. You told Dr Barth that your parents disavowed overt displays of emotion and that if you were upset with something, you were told just to get on with it. "I was taught to be very stoic". It seems that during your childhood in that family setting emotional issues were rarely discussed and whilst there is no suggestion that you were brought up in anything other than a close‑knit family unit, it is clear from the material in front of me that you learned at an early age to internalise your feelings and in consequence, were unaccustomed to reflect upon your emotional experiences.
26Dr Barth opines that you continue to grieve for your husband and that you have felt an abiding sense of loneliness and aimlessness since his loss. This has been compounded by your response to this offending. Dr Barth identifies you being in a moderate degree of distress; your symptoms are not sufficiently severe at this time to warrant a diagnosis of any mood disorder, anxiety disorder or adjustment disorder, but Dr Barth says that you would benefit from psychological therapeutic intervention.
27It is apparent from the material provided on the plea in the form of written references from your friends and members of the community, who are here today to support you, and the oral evidence given, particularly by your daughter, that since the death of your husband you have retreated. You spend your time primarily working on your garden and despite encouragement and invitations you have become more isolated from the world. Your main joy over recent times has been spending time with your grandchildren. You recognise that your children and your close friends have been supportive of you and yet you continue to isolate yourself. Indeed, your counsel told me on the plea that the 7th April 2017 was the first time that you had been out socialising in six months.
28You were licensed to drive at the age of 18. Apart from minor traffic infringements to which I pay no regard, you have never been in trouble with the police. You have no prior convictions, and you have no matters since 7 April. You have evidently been, in addition to your familial roles, a respected, diligent and valued member of your community.
29I have also been told of your remorse, of how you enquired constantly as to the welfare of Mr Alexander, the cyclist whom you had injured. The evidence given by your daughter Kate on the plea confirmed the open channel of communication between yourself and the informant, Mr Mitchell, whereby you requested and you were provided with updates upon Mr Alexander's progress. You recognised your offence and your culpability for it. You told Dr Barth that, "To drink and drive is appalling. I am so embarrassed and ashamed of myself. It is too awful for words. That poor fellow and his family."
30Dr Barth states that you are deeply worried about the ramifications of your situation and that you express lasting concern for the impact of this event upon both the victim Mr Alexander and his family. Beyond this you are also naturally concerned about your own future. He also refers to you being "burdened by a strong sense of guilt for this collision."
31I turn now to the serious nature of the offending.
32Negligently causing serious injury by driving is a serious offence, Mrs Cleary, as is made clear by the statutory maximum imposed by parliament of ten years' imprisonment.
33By virtue of your plea of guilty, you have accepted that your driving at the material time constituted an act or omission which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high degree of risk that serious injury would follow that the conduct merits punishment under the criminal law. The objective gravity of any particular instance of negligently cause serious injury by driving is to be assessed by reference to firstly, the degree of negligence involved and secondly, the seriousness of the injuries suffered by the victim.[1]
[1] Harrison & Rigogiannis v The Queen [2015] VSCA 349.
34I turn to the degree of negligence involved and consider that firstly.
35On the plea I sought assistance from prosecution counsel, Mr Gibson, as to how the negligence was put. Mr Gibson submitted that it was to be viewed as a combination of matters: the excessive alcohol, failure to exercise proper control over your vehicle and failure to keep a proper lookout. He submitted that there was a self‑evident causative connection between the excess alcohol in your system and the collision between your vehicle and Mr Alexander's bicycle.
36Your counsel, Mr Dunn in reply submitted that the negligence pleaded to was the getting into your vehicle whilst you were three and a half times the legal limit. As you told Dr Barth quite frankly, you lost track of the amount of alcohol that you had consumed. You said, "I didn't realise how much I had to drink. I don't drink often, but when I do I can drink fast, particularly when I am excited." You stated that in driving home, "I thought I was okay to drive, but obviously I wasn't."
37The brief of evidence contained a statement from Dr Morris Odell at p.105. His opinion was to the effect that there is a growing body of data which has been derived from studies on the effect of alcohol on psychomotor function and on driving. It is generally presumed that the skills related to driving are adversely affected at levels above 0.10 blood alcohol concentration. What is known from the studies is that alcohol has been observed in experiments to directly impact upon reaction time, tracking, vigilance and concentration, on divided attention tasks which are important for driving, on information processing, on motor coordination and on visual functions. All of these are essential skills upon which one relies when behind the wheel of a motor vehicle. All of these were skills that you, Mrs Cleary, must have known would have been impaired by virtue of the alcohol that you had consumed, thereby creating the high risk of serious injury to others to which you have pleaded guilty.
38The speed limit on the road upon which the collision occurred was, as I have said, 80 kilometres per hour. The estimate of your speed was between 60 and 69 kilometres per hour and there is thus therefore no question of excess speed on your part. There is no evidence to suggest that you were driving erratically prior to the collision or on the wrong side of the road. Indeed, there is a marked absence of any of those palpably reckless elements of driving that are so often encountered in cases of negligently causing serious injury by driving in these courts.
39In my view, it is the act of getting behind the wheel and driving after having spent an afternoon drinking and at three and a half times the prescribed legal limit of alcohol in your blood that the degree of negligence in this case and your moral culpability is to be found.
40I turn now to consider the injuries.
41Mr Alexander suffered severe traumatic brain injury evidenced by a Glasgow coma score of ten at the scene, a post‑traumatic amnesia duration of 27 days, and CT scan and MRI findings revealing interpeduncular cistern bleeding and diffuse axonal injury, particularly involving the left parietal and left posterior midbrain. There was also a finding of traumatic right cranial nerve, fourth palsy, and soft tissue injuries to the left elbow and to the left calf. The nature of Mr Alexander's traumatic brain injury included subdural haematoma and subarachnoid bleeding. There was in addition a posterior right temporal lobe contusion.
42These injuries were life‑threatening. There is no doubt that without the treatments and surgical interventions provided by both paramedics at the scene and en route to hospital and subsequent ICU intervention, Mr Alexander would have died.
43There was tendered on the plea as Exhibit 7 a report by Dr Rose Acher, a consultant physician in rehabilitation medicine dated 14 December 2017. Mr Alexander's treatment was managed at the Alfred Hospital from 7 April 2017 until his transfer to Caulfield Hospital Acquired Brain Injury Unit on 14 April. He was agitated on his admission to the Caulfield unit and initially required one‑on‑one nursing and medication. Dr Acher reports an initial neuropsychological assessment being performed at the Caulfield Hospital, indicating that Mr Alexander displayed difficulties with processing speed and some attention fluctuations which were impacting his ability to accurately encode and retain new information. There was variability in executive functioning, presenting with difficulties in multi‑tasking, planning, organisation and attention to detail.
44Mr Alexander remained an inpatient at the Caulfield Hospital Acquired Brain Injury Unit from his admission on 14 April 2017 until 15 June 2017 after which he was referred for out‑patient therapy at the Epworth. His treatment over time has consisted in a multidisciplinary rehabilitation program which has involved speech therapy, occupational therapy, neuropsychology, physiotherapy and exercise physiology.
45He successfully completed an OT driving assessment in October 2017 and I am told has returned to driving. His driving is, however, significantly limited by his fatigue. He has also now commenced a limited return to work program which is supported by the unit's locational occupational therapist. This consists in him attending at work for a few hours at a time on a few days a week. The work he is doing is at a much more basic level than that in which he was previously involved. He will require ongoing input from a vocational occupational therapist for some time.
46Mr Alexander is about to commence a return to cycling program. This consists of him riding a static exercise bicycle, not cycling on the roads.
47Dr Acher concludes as follows, "Dan is now eight months post injury, and though he has made significant gains, this obviously has had an enormous impact on his life. I expect him to undergo further improvements with respect to his functioning. However, it is unclear at this stage whether he will be able to return to all his previous activities at the level he was participating in pre injury due to limitations given by his cognitive functioning and his fatigue."
48Mr Alexander is now 28, a young man with an acquired brain injury. The impact upon him and his loved ones has been devastating, as was revealed by the victim impact statements.
49Mr Alexander stated in his victim impact statement (Exhibit 2) that, "It is difficult it articulate what I've gone through and how I feel about it. For almost a month I lost the ability to form new memories or recall old ones. I saw two of everything, couldn't stand without falling, talk without slurring, eat or drink without drooling or use the bathroom. Things that I took to be a part of my life was stripped away so violently. I now have balance issues, so that when I stand it feels like spinning around. I used to be physically independent, so not only is this a complete shift in my autonomy, but also in my confidence to do everyday activities such as taking my dog for a walk or having a conversation while standing up. Cognitively my brain is slower. This changes every element of my social and professional life and makes me feel completely incompetent. It not only has implications on whether I will progress my career, but whether I can even return to my old job at a full‑time capacity again. This is particularly difficult to come to terms with because I am only 28 and I've always been an ambitious person who has worked hard to get where I was before April 7th. In fact, in order to advance both of our careers, my partner and I were planning to move to London in July last year. Due to my ongoing health care appointments, there is no possibility of that happening. A lot of my social interactions were based around sport, including running, cricket, basketball, footy, soccer and of course cycling. Now that I have an acquired brain injury, I don't know if I'll ever be able to participate in social sport again. Leading a healthy and active life is something I've been passionate about, and being told I may not be able to do that is particularly hard to come to terms with."
50Ms Myvawny Costelloe, Mr Alexander's partner, read her victim impact statement and spoke of the night of 7 April when her life was simply cleaved into “life before and life after Dan was hit”. She stated that on 13 April 2017, which was their third anniversary, an MRI revealed that Mr Alexander had a diffuse axonal injury. She states, "We were all devastated. Later that evening, I went to the hospital chapel with Dan's parents and tried to comfort them as both sobbed uncontrollably… In the months following, I, along with Dan's family, spent all our time at the hospital. We had at least one family member with Dan at all times to ensure he didn't have a fall, which was our greatest fear… Dan was unable to understand this danger, and trying to keep him safe was enormously stressful. Caring for Dan both while he was hospitalised and in the weeks after he was discharged was all‑consuming, leaving no room for anything else for more than four months. This took a substantial physical and emotional toll."
51In speaking of Mr Alexander's professional performance, Ms Costelloe stated, "Whilst he started back at work, his fatigue and reduced mental capacity mean he is only at the office for 12 hours a week, with a productivity level that is 10 per cent what it was previously. It remains impossible to know how long it might be before he is able to work full time at 100 per cent productivity and to progress in his career, and in fact it is extremely uncertain that this will ever happen… Dan is not the same person anymore and I have no idea if he will be able to significantly improve beyond his current state. This reality is extremely confronting. I try to focus on the present and not let myself think about Dan's future… because when I do that, it is almost unbearable."
52She also speaks compellingly of her worry for Mr Alexander and how that has placed a huge strain on their relationship as he, perhaps understandably, resents her for treating him like a child, and she understandably gets upset and he does not understand that she is just trying to help him and to ensure that he is protected from harm.
53Mr Jacob Alexander, Dan's father, spoke of the overwhelming pain of seeing his son in a coma, on life support machines, fighting for life and described his utter helplessness at being able to do nothing.
54On the plea your counsel, Mr Dunn submitted that in assessment of the injuries I should have regard to the fact that at this stage Mr Alexander's recovery "remains a work in progress". Nonetheless, as he accepted, the life that Mr Alexander had on the afternoon of 7 April 2017 has been taken from him and that life will not be returned to him whatever the prognosis for his ongoing health. The injuries were at the time life‑threatening and on any view remain life changing. They are serious indeed.
55I turn now to the submissions of both counsel on the plea.
56Counsel for the prosecution, Mr Gibson, submitted that in this case the objective seriousness of this offending was high, falling between the mid to high range for this category of offence. In support of this submission he points to both your high blood alcohol content and to the injuries sustained by Mr Alexander, their treatment and ongoing and protracted rehabilitation.
57As I have stated earlier, the objective gravity of any particular offence is to be found in the degree of negligence and the consequent injuries. Whilst your offending can be distinguished from those cases where in addition to intoxication there were other proven aspects of driving placing other road users at risk of serious injury, and where victims suffered catastrophic injuries, your offending still represents a serious example of this offence.
58Mr Gibson submitted that your moral culpability was high. You made a decision to get into your vehicle and the responsibility for the consequences of that decision, Mrs Cleary, remain yours and yours alone.
59Mr Gibson submitted that I should reject any submission that your moral culpable was somehow reduced by Mr Alexander riding at dusk on a country road without lights or high visibility clothing. Whilst I did not understand Mr Dunn to be submitting that such action on the part of Mr Alexander constituted any form of contributing negligence, I do not regard an absence of high visibility clothing or lights or the nature or layout of the road as in any way reducing the seriousness of your offending.
60Mr Gibson also submitted that your failure to get nearer than 30 metres from the helpless victim and leaving the scene was an aggravating feature of your offending.
61On the plea I sought assistance from both counsel as to whether it was open to me to find your conduct from the point in time of the collision until your arrest to be an aggravating feature of the offending to which you have pleaded guilty. Having considered the submissions of counsel and relevant authorities, I conclude that it is not open to me to find as a circumstance of aggravation of the offence with which you have been charged, conduct of which you could have been but were not separately prosecuted. Even if I am wrong in that conclusion and it were open to me to make such an adverse finding against you, I could not so find on the evidence in front of me to the requisite criminal standard. Whilst your behaviour from the point of the collision until your arrest is part and remains part of the narrative of events, I stress that I have regard to it only as an indication of the level of your intoxication at the time of your offending. There can be no other explanation for such an uncaring and apparently out of character response.
62Mr Gibson urged that I should not allow your good character, antecedence and your experience of familial loss to swamp the relevant sentencing principles applicable. I agree with that submission to the extent that the sentencing process of course cannot be overwhelmed by either the antecedents of the offender, nor by the impact upon the victim of the injuries received.
63Mr Gibson submitted that the Court of Appeal has recently identified a clear need for current sentencing practices to be raised for offences of negligently causing serious injury by driving at the upper range of seriousness and that inevitably “such a change will have a flow‑on effect on sentencing for mid‑range and low‑range instances of the offence which will also need to increase in order to maintain appropriate sentencing relativities”.[2] Mr Gibson urged that when dealing with negligently causing serious injury by driving involving young offenders, that general deterrence must be regarded as of great importance and that youth in consequence must be given relatively less weight should have equal application as a sentencing principle to persons of more senior years with a lifetime of experience and knowledge.[3] In that regard, I agree. The objective seriousness of the offence is such that the importance of general deterrence and denunciation is clearly heightened.
[2] Harrison & Rigogiannis v The Queen [2015] VSCA 349.
[3] Harrison & Rigogiannis v The Queen [2015] VSCA 349.
64Finally, Mr Gibson submitted that a Community Correction Order either standing alone or in combination with a term of imprisonment would not satisfy the purposes of sentencing in light of the objective gravity of this offending.
65Your counsel, Mr Dunn, in his eloquent submissions agreed that the objective seriousness of the offence is to be found in the injuries suffered and in the alcohol consumed. He urged upon me the absence of other features of driving so often found in such cases which elevate the objective seriousness. You were driving a roadworthy motor vehicle, there was no suggestion of speed or erratic driving or being on the wrong side of the road, indeed your estimated speed was well below the maximum speed permitted on that road. I take all those matters into account. As stated above, it is, in my view, in the act of getting behind the wheel and driving after having spent an afternoon drinking and at around three and a half times the prescribed legal limit of alcohol in your blood that the degree of negligence in this case and your moral culpability is to be found.
66Mr Dunn submitted that the collision was the result of a combination of circumstances in addition to your consumption of alcohol. He pointed to the nature of the road, the time of day, and the positioning of the bike at the point of impact, to you climbing over the ridge of the hill, as being factors capable of mitigating the seriousness of the offending. I cannot agree with that submission. Your knowledge of the local roads should have impressed upon you the need for great care and have informed you moreover of the inherent danger of driving along such roads when your faculties were manifestly impaired by alcohol.
67Mr Dunn further urged caution in assessing the gravity of Mr Alexander's injuries. As stated above, the injuries suffered by Mr Alexander were at the time life‑threatening and on any view remain life changing. They are serious indeed and in that I have regard not only to the physical impact of the injuries, but to the psychological and emotional trauma that accompany them and indeed to the uncertainty that lies ahead.
68Mr Dunn submitted that your early plea was indicative of contrition and remorse and has a significant utilitarian benefit, that is the value of saving the time, expense and anxiety of going to trial.
69I give you full credit, Mrs Cleary, for your plea of guilty which the prosecutor accepted fairly was at the earliest opportunity. I further accept that your remorse is genuine, that is to say, I find that your remorse is founded not solely upon your own predicament, but is founded upon a real concern for the damage and the injury that you have caused your victim. I also have had regard to the financial compensation that you paid to Mr Alexander, again at the earliest opportunity. Mr Dunn urged upon me your good character, your general antecedents and your prospects for rehabilitation. I fully accept all positive aspects of your character that have been put in front of me.
70Mr Dunn submitted that I should have regard to the relative isolation that you have experienced since your licence was cancelled. Mr Dunn submitted that notwithstanding the primary sentencing purpose of general deterrence and denunciation, the sentencing disposition of either a Community Correction Order standing alone or with a term of imprisonment could meet the objective gravity of the offending and in support of this submission he took me to s.5 of the Sentencing Act 1991. He reminded me of the requirement therein of s.5 (4) and the principles enunciated in the well‑known case of Boulton.[4]
[4] Boulton & Ors v The Queen [2014] VSCA 342.
71In my view, Mrs Cleary, the objective seriousness of your offending is such that general deterrence and denunciation are to be given significant weight. No one can get into a vehicle at around three and a half times excess of the legal limit and drive without placing themselves or innocent road users at great risk of injury. Should such injury result, then those who so drive must expect to be punished. That is the message which must be sent, Mrs Cleary, from these courts. It is a message intended, if at all possible, to deter others from behaving as you did.
72Mrs Cleary, in sentencing you must have regard to a range of different factors, but the sentencing process is not intended to recompense Mr Alexander for that which has been lost. I must give effect to principles of general deterrence, that is, I must deter others from behaving as you did. In your case, Mrs Cleary, I see no need for specific deterrence. I have absolutely no doubt that you will never get into a vehicle again with more than the legally permitted amount of alcohol in your system and thus, in my view, the need for this court to specifically deter you falls away. But I must express the community's denunciation of your conduct and I should promote your rehabilitation. I take into account the effect that your crime has had upon your victim, Mr Alexander, and his family, and I must also have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence that you have committed.
73The Court of Appeal has called for an incremental uplift across the whole range of offences of negligently cause serious injury by driving and I have had regard to the recent review of authorities.[5] I must try to balance your personal circumstances with the circumstances of your offending, so this sentencing is a balancing exercise.
[5] Gurovski v The Queen [2018] VSCA 3.
74Clearly, as I have stated, principles of general deterrence and denunciation are important sentencing considerations in this case. I give full effect to all of the mitigatory factors to which I have been referred to on your behalf and I reflect them in the sentence that I pass. For the avoidance of doubt, and in particular, I have regard to:
(i)your age and the hitherto blameless and valued life that you have lived;
(ii)your general antecedents;
(iii)your absence of any prior convictions;
(iv) your community and your family's support;
(v) your plea of guilty at the earliest opportunity;
(vi) your genuine concern for Mr Alexander and the continued and genuine remorse that you have expressed; and
(vii) your excellent prospects for rehabilitation.
In light of your character, antecedents, family and community supports, I can confidently conclude that you will not trouble the courts again.
75But, Mrs Cleary, the objective gravity of your offending, in my view, simply cannot be met by the sentencing disposition that was urged upon me by your counsel. However, those matters to which I have referred above enable me to pass both a lesser sentence than I otherwise would have imposed, but also to set a shorter non‑parole period.
76Mrs Cleary, if you would stand up, please.
77On Charge 1, negligently causing serious injury, you are sentenced to a term of imprisonment of 30 months. I fix a non‑parole period of 16 months. Under s.69C of the Sentencing Act I find that the offence was committed whilst under the influence of alcohol which contributed to the offence.
78On Charge 1, your licence is cancelled and you are disqualified from obtaining another licence for two years under s.24 by virtue of the provisions of s.89 of the Sentencing Act.
79On the summary charge of exceeding the prescribed concentration of alcohol contrary to s.49 of the Road Safety Act, I sentence you to a term of one month imprisonment to run concurrently. Pursuant to s.49(7)(b) of the Road Safety Act 1986, I declare the level of alcohol was 0.174 grams of alcohol per 100 millilitres of blood.
80On the summary charge, your licence is cancelled and you are disqualified from obtaining another licence for a period of 17 months.
81The licence cancellations and disqualifications will run concurrently. In total, I'm cancelling and disqualifying Mrs Cleary's licence for a period of two years, which I will backdate to the operation of the s.51 notice. That can be conveyed, Mr Galbally, to my associate.
82MR GALBALLY: She was served under s.51 notice and it might have been on the day that she was actually interviewed, but I'll check that, Your Honour.
83HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for the plea of guilty, you would have been sentenced to a term of imprisonment of three years and six months with a non‑parole period of 30 months.
84Mr Gibson, I'm not going to make the forensic order under s.464ZF.
85Mr Galbally, in terms of custody management issues, I will note obviously that this will be Mrs Cleary's first encounter with the Corrections system. Is there anything else that you seek to raise?
86MR GALBALLY: No, nothing else, Your Honour.
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| ANNEXURE A IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Court Reference: CR-17-01698 Indictment No: H11001602 |
| THE DIRECTOR OF PUBLIC PROSECUTIONS -v- SALLY CLEARY |
SUMMARY OF PROSECUTION OPENING UPON PLEA
| Date of Document: Filed on behalf of: Prepared by: Ray Gibson of Counsel for JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | 18 December 2017 Director of Public Prosecutions Solicitors code: 7539 Telephone: (03) 9603 2409 Ref: Jenaya Ellis |
1.At approximately 6:05 p.m. on Friday the 7th of April 2017, a motor vehicle collision occurred on Shands Road, Main Ridge. The accused’s motor vehicle, a Volkswagen station wagon, collided with a cyclist. The collision occurred within an 80 km/h speed zone.
2.The collision occurred when the Volkswagen station wagon, travelling east and going uphill, struck a bicycle rider from behind. The rider was thrown onto the bonnet area, impacting and smashing the windscreen and denting the roof area on the passenger side. The rider then came off the vehicle on the passenger side rear and heavily impacted with the ground, where he scuffed along a driveway surface before coming to rest.
3.The impact resulted in the bicycle rider suffering life threatening injuries.
The Accused
4.Sally CLEARY was aged 68 years at the time of the collision and resided in Flinders. She was retired and a widowed. She was the holder of a current full Victorian Driver License. The license was current to 23rd of February, 2024. She was the registered owner of the VW station wagon. CLEARY was not injured from the collision.
The Victim
5.Dan ALEXANDER was aged 27 years at the time of the collision. He resided in Greenvale with his parents. He was the rider of a ‘Trek’ Road Bicycle and was riding slowly uphill at the time of the collision. As a result of the collision, he suffered life threatening injuries and was airlifted to the Alfred Hospital where he spent several weeks in recovery.
6.Doctor Jason SCHREIBER from the Victorian Institute of Forensic Medicine, provided a statement in relation to the injuries sustained by Dan ALEXANDER. He identified injuries as:
a. a traumatic brain injury, multiple bleeds and blood collection at the brain;
b. diffuse shearing injuries in the left brain centre;
c. cognitive impairment, balance problems, unable to swallow for 3 weeks post collision;
d. multiple injuries to the limbs, left elbow, two deep calf wounds, left shoulder wound; and
e. the totality of injuries to the head and limbs were severe and substantial. Surgical repair and life saving measures were required to allow for stabilisation and healing. There is no doubt that, without the treatments and surgical intervention provided by the paramedics and in the hospital, the subject would have been dead”.[6]
[6] HUB – pages 30 – 35.
7.As to the victim’s prognosis, he said that he will have high risk of epileptic seizures, poor quality of life and scarring.
The Circumstances
8.The Accused was living in Flinders and had been invited, along with another friend, out for lunch at a local winery. The Accused was excited at the prospect of going out, after the loss of her husband three years earlier, she didn’t get invited out much and spent most of her time working in her garden.
9.The Accused drove her vehicle to the Morning Sun Vineyard, Main Creek, Main Ridge. She arrived at around 12.40 p.m. on Friday the 7th of April, 2017. Her friend Sally MORAN joined her. They were given wine to taste and they took part in a long lunch of talking, drinking and eating while sitting in the sunshine.
10.At approximately 6.00 p.m. the Accused decided to drive home. She walked to her vehicle and drove out of the winery turning left onto Main Creek Road and travelled approximately 1.8 kilometres before turning left onto Shands Road. She drove another 1.8 kilometres before hitting the bicycle rider, while travelling uphill on a straight section of the road (Charge – Negligently causing serious injury). It was still light at the time, but it was dusk. The bicycle rider did not have lights on his bicycle; his clothing was dark in colour, his helmet was white; his shoes silver.
11.After hitting the victim, the Accused stopped further up the road past where the rider came to rest. She got out of her car and took a few steps back towards the injured cyclist but did not get closer than approximately 30 metres.
12.At the same time a young boy, Tom FERGUSSON, was riding his mountain bike around his parent’s property. He heard a crash like the sound of a bicycle falling off the roof of a car. He dropped his bike and ran out to the road. He saw the Accused’s car stationary up the road and then saw the injured rider and went straight over to him.
13.At the same time, the Accused’s lunch companion, who was driving home, stopped at the scene and got out to assist as well. She did not speak to the Accused. Then a second passing motorist stopped and the driver, Darren WILCOCK, asked if they needed help. He got out of his car and rang ‘000’ and followed the operator’s instructions in relation to the injured cyclist.
14.Whilst doing so a third car stopped that contained an off duty nurse, Edwina WILTSHIRE. She got out and took over treating the injured rider along with the help of WILCOCK. WILTSHIRE was with her partner, Maxwell BOWMAN. He spoke to Tom FERGUSSON and asked who was responsible. Tom pointed out the Accused who was still standing near her car further up the road. At that point the Accused got back into her car and drove off.
15.BOWMAN decided to follow the Accused and he got into his car and drove after her, driving along Shands Road until the Accused stopped at the intersection of Shands Road and Mornington-Flinders Road. The Accused stopped her car in a strange way, it was parked facing the way it had just driven from like the driver had missed the intersection and turned 180 degrees. BOWMAN stopped in Shands Road and in effect formed the shape of a T’ with his and the accused vehicle.
16.The Accused got out of her car and spoke to BOWMAN, demanding to know why he was following her. He replied that he wanted to make sure she got home safely. The whole time he was on the phone to ‘000’. At this time, another motorist driving south along Mornington-Flinders Road came across the two stopped cars. The driver, Michael TAYLOR, stopped and got out, saw the damage to the Accused’s car and asked the Accused, “Are you ok, what has happened?” She replied, “Look down there, I have hit a cyclist”.
17.TAYLOR ran down Shands Road looking for an injured rider and while he was gone the Accused got back into her car and resumed driving away from the scene with BOWMAN following. The Accused slowed twice but kept on going and turned left into Musk Creek Road which becomes Beechers Way. The Accused drove off at speed and then turned left into the driveway of a property called “Finhaven” and drove up to the house.
18.BOWMAN followed and stopped behind the Accused car where the accused had parked it. The accused came over to BOWMAN and said, “What are you following me for” and BOWMAN replied, “I wanted to make sure you got home safe”.
19.BOWMAN then returned to the victim, and shortly after drove police back to the Accused’s house to point out her property.
20.Police attended at the Accused’s property where she was arrested. She underwent a preliminary breath test which was positive for alcohol. She was then taken to the Rosebud Police Station where she underwent an evidentiary breath test which returned a reading of 0.172. The accused was later transported to the Frankston Police Station in order to provide a non-injury Road Safety Act blood sample. (Exceed PCA, s49(1)(f) Road Safety Act 1986 – summary offence transferred.)
21.Emergency Services attended the scene and the victim was air lifted to the Alfred Hospital. Major Collision Investigation Unit members were called and attended to the scene.
22.The Accused was interviewed on Monday the 10th of April, 2017. In summary she stated the following:
·She went to the winery for lunch and was joined by her friend Sally MORAN;
·She sampled wine and had a long lunch with more wine and food;
·She left the winery at 6.00 p.m. to drive home;
·She turned left from the winery, then turned left onto Shands Road;
·She did not see the bicycle rider prior to impact;
·After hitting him she stopped a short distance up the road;
·Due to other people assisting and not having her mobile phone she decided to drive home to ring ‘000’;
·She drove home, did not remember being followed by a witness;
·Upon arrival at home she spoke to the man in her driveway, who asked if she knew what she had done, which she said, yes I do;
·She then went inside and rang her daughter and son, she did not ring ‘000’ because she went into a panic.
23.Detective Leading Senior Constable Rob HAY, collision re-constructionist, attended the collision scene and conducted his own examination of the evidence. HAY stated:[7]
[7] Witness statement DLSC. HAY pages 92 – 96 of the HUB.
a.“I have used the Australian Government Geoscience web site to calculate the sun position and also to calculate the times of sun set and civil twilight. This indicates that the collision occurred at sun set. It is my opinion that there would have been sufficient light to see the cyclist;
b.the speed of the VW was between 60 to 69 km/hr when struck the cyclist from behind on Shands Road, Main Ridge;
c.the cyclist has passed over the vehicle;
d.the “throw distances” (likely point of impact to rest position of the cyclist was 24.2 metres; and
e.that the fact the cyclist passed over the vehicle indicates there was no braking prior to the collision.
24.Mechanical Investigator, Senior Constable Mat CRAINE from the Mechanical Investigation Unit, inspected the white VW station wagon on the 18th of April 2017. CRAINE stated: -[8]
[8] Witness statement Senior Constable Mat CRAINE page 91.
“My inspection did not reveal any mechanical fault with this vehicle which would have caused or contributed to the collision”
25.Shands Road, at this location, is a single lane, two-way, undivided carriageway that ran in a general east-west direction. There were provisions for one lane of traffic to travel in either direction and the road has a steep uphill gradient. The lanes were separated by double white lines painted on the road surface. The road has rural properties on either side. The road is of bitumen construction and in good condition.
Victim Impact Statements
26.At the time of drafting this document, victim impact statements have not yet been received from the victim and/or family. Once received they will be provided immediately to both the Court and Defence.
Other
·PSD: nil
·Maximum penalty: NSSI: level 5 – 10 years imprisonment
·(Mandatory license disqualification for two years – per s89 Sentencing Act 1991)
·Exceed BAC – s49(1)9f): If BAC is more than 0.15 – 120 penalty units or imprisonment for 12 months.
·A finding under s89C Sentencing Act 1991 will be sought.
·Compensation for destruction of the victim’s property is sought in the sum of $13, 300 if payment has not yet been made by the Accused, as agreed.
·A forensic sample order under s464ZF will be sought.
Raymond Gibson
Counsel for the Director
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