Director of Public Prosecutions v Cole
[2014] VCC 1823
•3 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00895
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEOTA MARY COLE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 October 2014 | |
DATE OF SENTENCE: | 3 November 2014 | |
CASE MAY BE CITED AS: | DPP v Cole | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1823 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One Charge of dangerous driving causing death to a pedestrian, Dr Fraser – intoxicated driver – deep remorse – early plea of guilty – steps taken to address anxiety, depression and marital issues causing binge drinking – extracurial punishment (development of PTSD and excommunication from defendant’s church) – principles 5 and 6 of R v Verdins applicable.
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence 16 months’ imprisonment and three year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Gilligan | Office of Public Prosecutions |
| For the Accused | Ms J Perlman | First Step Legal Service |
HER HONOUR:
1 Leota Mary Cole, you have pleaded guilty to one charge of driving in a manner dangerous causing death, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution plea summary (Exhibit “A”). Late in the afternoon of 12 April 2013, you consumed an entire 750 millimetre bottle of shiraz in approximately an hour and 40 minutes, having your last drink at about 5.40pm. Later, you and your husband ordered takeaway food from a local Italian restaurant. A short time before 6.20pm, you left home driving your vehicle west along Waverley Road, East Malvern. You approached the intersection with Macgregor Street, which was on your left. The driver of a white Ford sedan, travelling north in Macgregor Street wished to make a right-hand turn into Waverley Road. That driver edged the Ford vehicle forward into the intersection in order to see past a car which was parked on the southern side of Waverley Road, approximately 33 metres back from the intersection. As you entered the intersection, the Ford vehicle was projecting about a metre and a half into Waverley Road. You drove around the Ford vehicle as you crossed the intersection and struck Dr Joseph Fraser, aged 85 years, who was a pedestrian crossing Waverley Road on the other side of the intersection from south to north. Tragically, the collision caused Dr Fraser to suffer multiple severe injuries, from which he died on 16 April 2013.
3 The collision occurred in a 60 kilometre zone and there is no evidence that you were exceeding the speed limit. A collision reconstructionist, Detective Senior Constable Hay, estimated your speed at between 32.9 kilometres per hour and 51.3 kilometres per hour, with the most likely speed being 42.1 kilometres per hour. However, there was no evidence that you had braked, at all prior to impact.
4 You were uninjured. A preliminary breath test administered to you at the scene indicated the presence of alcohol. Approximately two and a half hours after the collision, namely at 8.53pm, a breath test was conducted which, upon analysis, showed a blood alcohol reading of 0.102%. You also consented to provide a voluntary blood sample, which was taken approximately three and a half hours after the collision, namely, at 9.55pm. Analysis of your blood sample showed a blood alcohol concentration of 0.103%. Dr Maurice Odell, forensic physician from the clinical division of the Victorian Institute of Forensic Medicine, provided an opinion that your blood alcohol concentration at the time of the collision was had been in a range with the lowest possible reading being 0.111%, and the highest possible reading being 0.139%. His view is that your driving skills would have been adversely affected by the effects of alcohol in your blood in such range.
5 There is evidence that, upon you getting out of your car after striking Dr Fraser, you screamed, “What have I done?” You cooperated with the police and participated in a record of interview which was conducted approximately two hours after the accident. You answered all questions put to you in relation to your alcohol consumption and the circumstances of the collision as known to you. Your version of events was that you had been behind a slower white vehicle, which had begun to turn left into Macgregor Street, and that it was after you moved your vehicle to the right, to overtake that car, that you struck Dr Fraser. You admitted that the first time that you saw him was when his body was thrown up onto the bonnet of your car after you struck him.
6 Ms Perlman, on your behalf, conceded that your account of the circumstances of the collision was erroneous but urged that the court regard this as being due to your shock following the collision, rather than your intoxication. I find it unnecessary to make any finding in this regard. Suffice to say that you acknowledged being intoxicated and breath and blood analysis confirm that to be the case. Indeed, in answer to Question 551 in the record of interview you stated, “Well, I’d been drinking and think from here, he didn’t see behind the car and was walking out on the road and I turned around that car. That’s bad judgment”. Regardless of how you viewed the circumstances, you acknowledged your wrongdoing and pleaded guilty to the charge at an early stage and have exhibited remorse for causing the death of Dr Fraser and the deep distress that you have caused to his family.
7 You are presently aged 61 years, having been born on 24 March 1952. You come before the court with no relevant prior convictions. You were apparently from a good family. You had one older brother and two younger brothers, and there is no suggestion that it was other than a law abiding and decent family. After leaving school, you trained as a teacher and worked in that vocation for many years. At the same time, from your early 20s, you became a devout member of the Mormon church and, throughout the rest of your life, you have devoted something in the order of eight hours each week to doing charitable works for the church, as well as being involved in other organisational activities.
8 In 1987 you graduated from Monash University with a Bachelor of Social Work and, since that time, you have worked continuously as a social worker, particularly with the Department of Education in a variety of schools supporting vulnerable children. In 2000 you devised a resilience program for children who were being bullied, and in 2009 you were seconded to Warragul School to help with the Support and Recovery Program for traumatised children, following the Black Saturday fires. Numerous examples of your kindness and goodness to others were given by your counsel throughout the course of the plea. Your father, to whom you were very close, died when you were 25 years old and your mother was alone as a widow for a long term. Ms Perlman stated that you were very caring of her and in the last six years of her life, whilst working full-time as a social worker and also doing many hours of charitable and other duties with the Mormon church, you would visit her twice a day to bandage her ulcerated legs and cook and clean for her. Your devotion to your mother’s care is also mentioned in a report from your long-term treating general practitioner, Dr Price. Apparently there were allegations of medical mismanagement by treaters prior to her death. Dr Price states that you suffered significant issues with the loss of your mother in 2003 and you have experienced a prolonged grief reaction.
9 You did not marry until you were aged 45 years. Nor did you drink at all before you married. Indeed, imbibing alcohol is deeply frowned upon by the Mormon church. Unfortunately, after one or two years of being married to Mr Cole, you seemed to develop a degree of anxiety which caused you to start drinking alcohol to help you cope. Mr Cole, himself being a devout Morman, does not drink alcohol. A quantity of material from several exhibits refers to there being significant strains in the marriage and alleges that Mr Cole has been a domineering and controlling husband, who regularly eroded your self-esteem through criticism. No doubt there are two sides to every story and living with a binge drinker would create its own stresses for Mr Cole, however, this is a very dominant theme in the many reports which have been tendered on the plea. Indeed, the date of the accident was your wedding anniversary and Ms Perlman stated that you had purchased the bottle of wine to drink before your husband came home because of your anxiety that he would, again, criticise you for such things as not having set the table correctly. You did not need to drive to get takeaway for the two of you, because your husband is a teetotaller, but it would appear that the extent of your drinking on this day may not have been apparent to him. The tragic irony of all of this is that your professional work helped students to deal with bullying and to build resilience, but you seemed unable to stand up for yourself in the situation in which you found yourself in your marriage. It seems that you are a vulnerable personality because Dr Price’s report also refers to you being subjected to a prolonged episode of workplace bullying. She does not specify the dates upon which this occurred, but it would seem that this was some time ago, when you were in the employment of the Department of Education.
10 Mrs Cole, it would appear that you had battled with a dependence upon alcohol for well in excess of a decade prior to the night of this tragic fatal accident. Although a report from your general practitioner, Dr Price, makes mention of treating you over a period of 17 years for deteriorating mental health from the date of your marriage at age 45, she makes no mention of you, at any time prior to April 2013, having sought to address your pattern of binge drinking of alcohol as a form of self-medication for your distress and despair. Also, it was in this unhappy context, of you having consumed an entire bottle of wine, that you got into the car on 12 April 2013 and caused the death of Dr Fraser.
11 The offence of driving in a manner that is dangerous to the public causing death is more blameworthy than the lack of reasonable care that might make a driver liable to civil damages. It is an offence which recognises conduct that exposes other users of the road to a risk significantly greater than that which is ordinarily associated with being on a road. The penalty of 10 years for this offence reflects the grave community concern about the number of deaths which occur on the road because of irresponsible driving. In your case, although it is not alleged that you were travelling at an excessive speed, your blood alcohol content at the time of driving, which was at least double the permissible legal maximum, was clearly such as to make you a dangerous driver. It is plain that in sentencing for an offence like this there must be denunciation of your conduct and emphasis upon the principle of general deterrence, so that others in the community who may be minded to take the risk of driving whilst intoxicated will know that such behaviour will not be tolerated and will be punished more likely than not by a term of imprisonment.
12 To hold a licence to drive is a privilege and it is only given to adults because driving a vehicle other than in a responsible and adult fashion can so easily have disastrous effects, like that of your driving on 12 April 2013. I know that you did not set out to deliberately do anyone harm, but the fact of the matter is you had been abusing alcohol for a very lengthy time and, although you managed periods of abstinence, there is no evidence that you sought to address this serious problem in any meaningful way until after the tragic death of Dr Fraser. You had drunk a whole bottle of wine in less than two hours and, in these circumstances your moral culpability in getting behind the wheel of your vehicle is plain. All members of the public who were in the vicinity of your drunken driving were put at risk. You have caused the loss of Dr Fraser’s life, a man, who at the age of 85 years, was still managing to live alone independently and was much loved by his immediate and extended family and much revered for the very extensive contribution to medicine, which he had made over the course of his life.
13 The Victim Impact Statements of Dr Fraser’s three children, Elizabeth, David and Martin Fraser, speak movingly of their father, a man of humble origins who won scholarships to study medicine and went on to become a much renowned physician and research scientist. They speak of how he gave back so much to the community, particularly having given generously of his time to the less fortunate in our community, such as refugees. His service was acknowledged in the Queen’s Birthday Honour’s List and by bestowal of honorary doctorates, as well as memberships of the very elite scientific body, the Royal Academy of Science in Sweden, which nominates the candidates for the Nobel Prize in medicine and science. Each of Dr Fraser’s children speak of the positive influence he was in their lives and the deprivation they feel through his premature death. They enjoyed his company, good humour and wisdom in his retirement, where he was able to give more time to them than when he had a very busy professional life. They deeply regret that their own children have been deprived of the benefit of knowing their grandfather more. Indeed, one of his grandchildren did not get to tell him that she had succeeded in obtaining a place at medical school in order to follow in his footsteps. Dr Fraser’s children express anger at how avoidable his death was, given that you reside so close to the Carnegie shops where you could have walked to obtain takeaway food. They express a sense of sad irony that their father, who gave so much back to the community, lost his life to a car driven by a local resident in that community.
14 Mrs Cole, in your favour I take into account the following factors:
(i)You accepted responsibility for your bad judgment in driving when interviewed by police and cooperated with them by providing breath tests and blood tests, the analysis of the latter having provided the essential evidence of the aggravating factor of intoxication which is the essence of the dangerous driving charge to which you have pleaded guilty.
(ii)You pleaded guilty at an early stage and, at least the family of Dr Fraser did not have their grief aggravated by your failure to acknowledge your moral and legal culpability and a protracted trial.
(iii)You are truly and deeply remorseful for what you have done. Your distress was manifested when being interviewed by police and each of the medical and psychological reports, which have been tendered on your behalf, are powerful testimony to the profound shame, guilt and remorse which you have suffered. Indeed, it appears to have been remorse of a debilitating degree, described by your treating psychiatrist, Associate Professor Allan Gijsbers, as “self-flagellating guilt”. A letter of apology from yourself to Dr Fraser’s family was tendered. I accept it as a heartfelt expression of empathy with the deep pain and grief which you have caused to Dr Fraser’s family and a genuinely humble and contrite apology for what you have done.
(iv)It is plain that you suffered from anxiety and depression prior to this incident. Although I made it plain to your counsel, Ms Perlman, that I did not consider that your “self-medicating” these conditions with alcohol meant that principles 1 to 4 of R v Verdins[1] were attracted, I take into account these as relevant background factors. I accept that you were a vulnerable person, who, in spite of all your impressive work assisting schoolchildren to be resilient in the face of anxiety, bullying and other psychological trauma, had adopted an inappropriate strategy of binge drinking in order to numb your own anxiety and depression.
[1](2007) 16 VR 269
(v)Since your offending, you have suffered some degree of extracurial punishment in that you appear to have developed symptoms of Post-Traumatic Stress Disorder relating to the occurrence of your car striking Dr Fraser. In various of the reports tendered, there is reference to frequent intrusive memories of the accident, avoidance of the accident site because it triggers traumatic memories and evokes unbearable feelings of guilt and remorse and disturbed sleep. These distressing symptoms are referred to in the reports of your general practitioner, Dr Price, dated 7 August 2014; your treating psychiatrist, Associate Professor Gijsbers, in his report dated 16 October 2014; and your treating psychologist, Dr Borrell, in her report dated 7 August and 21 October 2014.
It would seem that your anxiety, distress and guilt following the accident on many occasions became overwhelming. Extracts from your Alfred Hospital file note that the CAT team was called to attend you in August and September 2013. On 18 August 2013 you were admitted to the Alfred Hospital, after you had recently been discharged from Delmont Private Hospital where you had apparently undergone some rehabilitation program under an addiction medicine physician, Dr Martin Lloyd-Jones. Your Alfred Hospital file records that you took an overdose of the drug Seroquel whilst in intoxicated. The records note that you were tearful when discussing the fatal car accident in April and reported poor concentration and memory recall, no motivation, decreased energy and, although you had remained abstinent from alcohol from April to July, you lapsed in the context of dealing with the fatal car accident and pending charges and your ongoing guilt and rumination about it. You had a further admission to the Alfred Hospital on 18 November 2013. On this occasion you had suicidal ideation relating to your guilt and post-traumatic symptoms, and had become acutely intoxicated following a five day binge of alcohol, during which you drank two to three bottles of wine per day. The record noted that you had been struggling more with your alcohol abuse since the collision in April and your anxiety and post-traumatic stress symptoms often trigger a compulsion to drink in order to forget or suppress unwanted thoughts and emotions. The records states: “She reports that when she drinks alcohol she becomes more and more depressed and experiences suicidal thoughts, but when sober reports feeling full of energy, agitated and hyper”. You were diagnosed as having insight and cognition intact but suffering an Alcohol Use Disorder of moderate to severe binge pattern, and Post-Traumatic Stress Disorder.
(vi)It is to your credit that, following your last admission to the Alfred Hospital, in November 2013, you have taken serious steps to address your alcohol abuse. You had been seeing your general practitioner, Dr Price, and also the addiction physician, Dr Lloyd-Jones, under whose care you had been admitted to Delmont Private Hospital. On 29 November 2013, Dr Lloyd-Jones referred you to Associate Professor Gijsbers, treating psychiatrist at the Melbourne Clinic. He arranged a 10 day admission to the Melbourne Clinic for alcohol withdrawal. Unfortunately you lapsed into alcohol use over the Christmas/New Year period and were again admitted on 6 January 2014 for an inpatient withdrawal. Following this, you were admitted on 13 January 2014 for a 28 day inpatient program to address your alcohol abuse. Unhappily, as is so often the case with long term addiction to a substance, you lapsed again and, on 4 March 2014, again, underwent a seven day withdrawal program. It would appear that, following this, you were put on Antabuse medication and you did well for a number of months until a further lapse in September 2014. You were admitted again to the Melbourne Clinic for seven days from 15 September 2014. Shortly following your release, on 22 September 2014 you consumed two bottles of wine within two days but then decided that you simply must stop and have remained abstinent since late September 2014. You had ceased your work as a social worker in June 2014 in order to focus upon trying to recover from your alcoholism. In addition, since December 2013 you have attended the Addictive Behaviour Day Program at the Melbourne Clinic on one full day each week. This is attested to in a letter from Effie Moraitis, the manager of that program, dated 5 August 2014. Ms Moraitis states that you demonstrate a commitment to your ongoing recovery and have participated well in the group.
Further, since February this year, you have been attending the psychologist Dr Jan Borrell at the First Step Program, which is a specialist drug and alcohol clinic in St Kilda. Dr Borrell has seen you on 10 occasions between 27 February and 18 October 2014. She notes that you have made progress in addressing your alcoholism and in working on your vulnerability and difficulties in the relationship with your husband. She states, in her most recent report, that your prognosis “looks exceptionally promising because (you have) shown a genuine desire to address (your) multiple and complex issues and embrace the support offered to (you)”. She notes that you have gained more insight into your issues and the impact of alcohol abuse on your mental health, and that, as long as you continue to engage in regular psychotherapy, she predicts that your recovery will continue on a positive trajectory.
Similarly, your treating psychiatrist, Associate Professor Gijsbers, in his report, dated 16 October 2014, notes that your struggles with anxiety and guilt had been a major impediment to you being able to remain abstinent because you used alcohol as an anaesthetic for your anxiety, but he noted an improvement in this, as well as the fact that counselling with Dr Borrell had helped you to develop better coping skills in dealing with your husband instead of bottling up your anger and suppressing it with alcohol. He notes that, as a consequence, you and your husband are developing a healthier relationship with each other. He noted that a week before your “dreaded court case” you appeared confident and calm, that you had come to terms with your anxiety and relationship stressors and were ready to face the consequence of your offending. He considered that a small dose of Baclofen, 10 milligrams twice a day, had probably also helped to take the edge of your anxiety. I here interpolate that, to my observation, you had resigned yourself to your fate of serving an immediate custodial sentence with grace and dignity.
(vii)You have demonstrated insight and a determination not to reoffend by handing in your licence to drive. This was in the month after the accident, namely, in May 2013.
(viii)Prior to this offending you were a person of good character. It is apparent from seven character references tendered on your behalf, that you have always lived a life where caring for others has been a dominant consideration. Your husband, brother and long term family friend, Mrs Lindsey Castle, speak of the quite remarkable hours of service to others that you have performed through your church, which has included delivering meals to families, babysitting, taking needy people shopping, visiting the ill, gardening, housework and driving others to appointments and teaching English to refugees. As previously mentioned, your general practitioner also has spoken of the extraordinary devotion to your elderly mother over many years. In addition, there are references from the principal of the school, where you were employed as a social worker, a psychologist, who has known you for two and a half decades and has closely worked with you for much of that time in Department of Education Programs, and a current student of psychology, who underwent a placement with you as part of her course. These people speak in the highest terms of your professional capacity to build trust with your young student clients and counsel them effectively in situations of emotional distress. I have no doubt that you were a talented and very caring social worker, who has devised a number of programs to assist vulnerable children, which will be of ongoing assistance to others who deal with such children.
As well as the written references, there were a number of friends in court to support you. Notwithstanding your anxiety and depression and your problems with alcohol, it appears that you continued to be able to function as a social worker and as a caring and contributing member of society, such that you are much valued. Your good character, together with the intensive steps which you have taken to address your anxiety, depression, relationship problems with your husband and alcohol dependence, lead me to believe that you have very good prospects of rehabilitation.
(ix)you have suffered some further degree of extracurial punishment in that you have been excommunicated from the Mormon church, which had been so central to your life since you were in your early 20s, both as a code of spiritual and moral guidance but, also, the conduit for much of your generous charitable work in the community. I accept that, whilst your spiritual beliefs have been of some assistance in sustaining you through the ordeal of facing up to the consequences of your offending, it is a devastating blow to be deprived of membership of that church which has meant so much to you.
(x)The medical, psychological and psychiatric material, which has been tendered to the court, leaves me in no doubt that your anxiety and depression and post-traumatic stress symptoms have been very marked following the collision in April 2013. Although your treating psychologist, Dr Borrell, notes the progress that you have made in building your self-esteem and addressing your anxiety, depression and alcohol dependence, she describes you as being of a vulnerable nature such that you are likely to find the harshness of a prison environment traumatising and this may well place your mental health at risk. In all of the circumstances, I am satisfied that your state of depression and anxiety and post-traumatic stress symptoms, which require ongoing medication, should attract principles 5 and 6 of R v Verdins. That is, I take into account that a sentence of imprisonment would weigh more heavily upon you than it would on a person in normal mental health. I also take into account that there is a serious risk that imprisonment may have a significant adverse effect on your mental health and that this factor should mitigate to some extent the punishment imposed upon you.
15 Mrs Cole, the gravity of offending which has taken a life in circumstances where you have been a drunk driver, means that the only appropriate sentence is a term of imprisonment. However, I consider that the mitigatory matters which I have enumerated, in combination, are sufficiently powerful to compel a very substantially reduced term of immediate imprisonment compared to that which, otherwise would have been imposed. In the particular circumstances of this case, I consider it appropriate to give a combination sentence by way of an immediate term of imprisonment, together with a Community Corrections Order. It is my hope that this sentence can achieve the effect of deterring others from drink driving but not so crush you as to destroy you and enable you to continue your rehabilitation in the community in a shorter time than, otherwise, would have been the case where a death through drink driving has occurred.
16 On one charge of dangerous driving causing death, you are convicted and sentenced to be imprisoned for a period of 16 months. I further order that upon release you undertake a Community Corrections Order for a period of three years. In this regard, I note that I have received a report from the Office of Corrections indicating that you are suitable for a Community Corrections Order. Mrs Cole, I can only make such an order if you consent to it. Do you consent to it?
17 The terms of the order are as follows:
(a)you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment;
(b)you must comply with any obligation or requirement described by the regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
18 In addition to the said terms, the following conditions apply:
(i) that you perform 300 hours of unpaid community work;
(ii)that you undergo treatment and rehabilitation by way of assessment and treatment, including testing for alcohol dependence and, also, for mental health assessment and treatment;
(iii)that you be supervised, monitored and managed as directed by the Secretary for the term of the order.
19 Do you understand the terms and conditions that I have just read out, Mrs Cole?
20 Do you agree to enter into an order for a period of three years and to comply with such terms and conditions?
21 Pursuant to s18 of the Sentencing Act, I declare a period of 10 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
22 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the sentence imposed would have been a total of five and half years’ imprisonment with a non-parole period of four years.
23 Pursuant to s89 of the Sentencing Act, I order that all licences to drive are cancelled and you are disqualified from obtaining a licence for a period of 18 months. In determining the period of disqualification, I have taken into account that you have not driven since May 2013.
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