Director of Public Prosecutions v Cleaver

[2015] VCC 1149

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01269

DIRECTOR OF PUBLIC PROSECUTIONS

v

RY CLEAVER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 August 2015
CASE MAY BE CITED AS:	DPP v Cleaver
MEDIUM NEUTRAL CITATION:	[2015] VCC 1149

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 R. Pirrie	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Balmer & Associates

HIS HONOUR:

1Kevin Campion was a more than decent man.  He was a contributor, a generous and loving man happily married for 36 years.  He and Mrs Campion were compassionate people, opening their home and acting in that most important role as foster parents to children in difficulty.  Beyond that, foreign students were often welcome.  He and his wife were travellers here and overseas.  He lived a full life and there was more that was planned.

2On 1 May 2013 he went out for a short trip.  He drove home, stopping in the right hand lane of the southbound traffic on the Nepean Highway, ready to turn into his driveway when it was safe.  He was there to be seen.  Other drivers saw his car and changed lanes, as was appropriate and necessary.  The video in the car driven by Mr Myers, who was driving a car nearby, shows exactly that; that Mr Campion was there to be seen.  It was an ordinary scene and no doubt Mr Campion was doing as he had done numerous times before.  You, Ry Cleaver, were driving your small tray truck with scaffolding on board.  You had two employees in the truck with you.  You failed to stop or avoid Mr Campion's car.  You struck his small vehicle hard from behind.  He was gravely injured.  Mrs Campion came out to the dreadful scene and travelled with him in the ambulance to the hospital where he died.  It only has to be said for the tragedy and grief to be appreciated.  Mr Campion was 77 years old. 

3You were 23 years old.  You had done well in life.  You were raised by your mother as the eldest of three.  She is still there beside you.  She is still there beside you.  You had worked since you were 17 and impressed your employers Deck Guard Rails.  They encouraged you to set up your own business and then contracted you to do work for them.  You have only worked for Deck Guard Rails since leaving school.  They will continue to support you but it will be hard in the near future as you will be without a license for 18 months.  Your work record is very much in your favour.  Your previous court appearances are of no real relevance.  They were a long time ago when you were very young and you have matured into a solid young man.  Your mother and your employer have noticed your withdrawal as you have endeavoured to cope with the consequences of what you did.  Your relationship with a young woman ended as you were unable to involve yourself in the relationship because of what had happened.  Yours was a momentary loss of concentration.  But our community expects all drivers to be attentive to the many things happening on busy roads.  A car and more so a truck is lethal if the driver is not concentrating so as to control and operate the vehicle to avoid avoidable collisions.  This was tragically so avoidable.  Falling below expected standards, even momentarily, brings life-changing consequences for all affected.  Mr Cleaver, you committed a crime causing the death of Mr Campion and as such the consequences are that you must be punished. 

4In this case the effect on Ms Campion has been made clear in her compelling and noble victim impact statement.  Her grief and loss felt daily and her sense that her future is far from what she was looking forward to are matters I take into account.  Much of what I know and have said of Mr Campion and their relationship comes from her victim impact statement.  Her compassion and generosity to you is of a rare quality.  It is of a kind that you, Mr Cleaver, now have extra reasons to do the right thing into the future.  Do not let her down.  Listen and apply her sentiments that you learn from this and indeed teach other young drivers that you might come across to be responsible and careful.  I could say a lot more of the detail of Ms Campion's victim impact statement but its importance is I think well understood by you and certainly by me.  But one aspect needs to be mentioned.  It relates to the weight to be given to your plea of guilty and your obvious heartfelt remorse.  You wrote a letter to Ms Campion.  It is short and in the words of a young working man.  It expresses your condolences, your remorse and explains your own life has changed and will probably not be the same again.  You acknowledge the difficulties that court proceedings must have caused.  Ms Campion, having now got that letter, as you indicated that you would plead guilty, says that she treasures it, carries it and its contents and your willingness to plead guilty has led her towards closure.  She is grateful for the plea of guilty as in her mind she was worried for you if you went to prison.  These are important sentiments from you and Ms Campion.  They do not dictate my sentence but I do not ignore the importance of what the very experienced Justice Vincent said of the importance for victims to rehabilitate by them knowing that the justice system has not let them down.  Your plea of guilty and your remorse and your relative young age, the lower moral culpability, allowed me to indicate earlier that a sentence would not involve incarceration.  In my view, by reason of the principles set out in the important decision of Boulton v The Queen and by reason of Parliament recently restating that gaol must be a sentence of last option.  In my view I can properly punish you without requiring any gaol to be served, notwithstanding the seriousness of this offence.  The law always takes the sanctity of life to be important.  But this is a case for the practical implementation of what the Court of Appeal called the new sentencing landscape.  The Community Corrections Order I am about to impose is no soft option.  It punishes by you doing work for the community, unpaid.  You will have to be under supervision and for a lengthy time.  You will lose your license will all the difficulties that that will cause.  Your rehabilitation will be facilitated I hope by programs directed at ensuring that you do not re-offend and by helping you cope with the obvious consequences for your mental health of this event.  Mr Cleaver, take up this program and all that is involved in the Community Corrections Order.  It will help in the end.  You will, I am sure, never be quite the same.  No one ever is after events like this.  But absolutely no one is ever the same after a prison sentence and as a sentencing judge I never forget that.  In this case punishment by imprisonment is not required but be assured, should you not keep good what I take to be your word never to be in trouble again, if you falter on this Community Corrections Order you will in all likelihood be sent to prison. 

5For committing the crime of dangerous driving causing the death of Kevin Campion I impose with conviction a 4 year Community Corrections Order.  There are certain conditions that apply to that that apply in every Community Corrections Order.  They will be outlined to you shortly.  The conditions that apply to you particularly are that you must do 350 hours of unpaid work in that four year period.  You must be under supervision.  You must undergo assessment and treatment for mental health problems.  You must undertake programs that you are directed to do that are themselves directed at ensuring that you do not re-offend.  As a consequence of you committing this crime, I am compelled to cancel any license you hold and disqualify you from driving for 18 months.  Had you pleaded not guilty to these crimes and been found guilty of them I would have sentenced you to 18 months' imprisonment with a minimum term of 12 months.  The prosecution has also made an application that you provide a sample, that is, a scraping from your mouth so that your DNA can be extracted and kept on the database.  I consider that application and I intend to grant it.  Your DNA will be on a database expanding that.  So what you have to understand is that within the timeframe that is set out in the form that you will get, you have to attend at a police station and undergo the scraping from your mouth.  If you do not cooperate with them when you go there to have that occur, they are authorised to use reasonable force to get that DNA sample.  The way through of course is just to cooperate. 

6Is there anything else required?

7COUNSEL:  No, Your Honour.

8HIS HONOUR:  You can be seated, Mr Cleaver, and a document needs to be prepared and you must sign it and I will explain other things on it.  

9Mr Cleaver, the Community Corrections Order that I have imposed will last for four years.  It commences today of course and concludes on 20 August 2019.  I should pause at this moment and mention that Parliament has only recently allowed for courts to impose Community Corrections Orders of that length and I cannot recall imposing one at that length or much.  There may have been one or two.  This is a long Community Corrections Order, I appreciate that.  However, that meets the seriousness of the offence.  These conditions I am about to run through apply to everyone on a Community Corrections Order.  You must not commit any offence for which you could be imprisoned during the time the order is in force.  You should consider almost every offence you can think of is punishable by imprisonment.  Rest assured driving while disqualified is such a crime.  Should you be tempted to do that in the next 18 months you will breach this order and come back before me.  You have heard what I have said.  You must comply with any obligation or requirement under the regulations of the Sentencing Act.  That will be things like getting a photograph of you so that they know who you are.  You have just got to do what they ask of you.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre, that is the Frankston Community Correctional Services there on the Nepean Highway and Frankston.  You must do that within two clear working days of this order starting Monday or Tuesday.  You must let a Community Corrections Officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so.  You must obey all lawful instructions and directions from the Office of Corrections.  That applies to everyone.  What applies to you as I have said is 350 hours of unpaid community work over those four years.  I have heard what you have said that you might try and get those done as quickly as possible.  That is a matter for you.  But you must, if you are required to do them, turn up on the day and stay for the whole time.  It cannot be a matter of saying I have just got a little bit of work to do, it is all getting too hard, I have got a contract that I might be able to do.  You have got to make arrangements with them so there is never a time that you are supposed to be somewhere that you are not there and stay there for the whole time.  You must be under the supervisions of the Community Corrections Officers for four years; that is no small matter.  You must undergo any mental health assessment and treatment as directed by the regional manager.  I foresee that that will probably be asking you to go on a mental health plan through your general practitioner.  That is appropriate for you.  Take it up.  You must participate in programs and courses that address factors relating to offending as directed by them.  If you sign that document then I will sign it, then Mr Cleaver, that will bring this matter to an end.

10You have signed that document; so too will I, Mr Cleaver.  But above what your signature is that you understand the effect and conditions of this order and consent to it being made.  So there is your promise.  I am unlikely to forget this case for a long time, Mr Cleaver, so if you come back before me I will remember that you promised to do all this.  Is there anything else?

11COUNSEL:  No, Your Honour.

12HIS HONOUR:  Thank you.  You will get a copy of that and as I say, you are then free to leave.  I thank counsel very much for your assistance throughout and to the police officers involved.  These are not easy matters to everyone, Ms Campion, and Mr Cleaver's family for their dignity.

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