Director of Public Prosecutions v Corbier
[2018] VCC 1204
•2 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-00396
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JACK ANDREW CORBIER |
---
JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2018 | |
DATE OF SENTENCE: | 2 July 2018 | |
CASE MAY BE CITED AS: | DPP v Corbier | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1204 | |
REASONS FOR SENTENCE
---
Catchwords: Culpable driving causing death
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr G. Hughan | Peter Lunt Lawyers |
HER HONOUR:
1 Jack Andrew Corbier, you have pleaded guilty to one count of culpable driving causing the death of Joshua Clayton. The maximum penalty for this offence is 20 years. Additionally this offence is a serious motor vehicle offence as defined by s.87P of the Sentencing Act and the minimum period of disqualification is 24 months.
2 On Saturday, 14 January 2017 at about 12.30 am, you were driving Josh's car, a ute, with him in the front passenger seat along the Kallista-Emerald Road, The Patch. You were 21 years of age and unlicensed. You have never had a licence, Josh was 19. Josh had earlier that night picked you and Jenna Creighton up to go to Jenna's boyfriend's house, Nicholas Ward. You all arrived about 6 pm. You and Josh brought your own alcohol to the Ward's house and you were drinking and eating with the family whilst a wedding rehearsal was taking place for a wedding scheduled for the next day. Josh had with him vodka and was mixing it with Mother energy drink. You brought cans of Jack Daniels and cola but also drank mixed drinks with Josh when these had been consumed. Jenna described Josh's drinking quickly whilst you were more moderate. By about 10 pm you and Josh had run out of alcohol but wanted to continue drinking. Josh by this stage was described as really drunk and you a bit tipsy. You both had access to more vodka and continued drinking.
3 Soon after others who were at the rehearsal had gone home and you, Josh and Jenna were left with Nicholas. At one stage Josh went outside with both you and the others thinking that he was on the phone. While Josh was away you mixed yourself two more drinks with vodka and Mother energy drink. When Josh did not come inside after a period of time you realised he had left. You called him and he told you that he was coming back in a taxi from Boronia after getting more alcohol. That was between 11.30 and midnight.
4 You told him to stay in the taxi when he got back and that you could take the alcohol to your house and then come and get Josh's car in the morning. Soon Josh rang you and told you he was outside. Nicholas gave you the keys to Josh's car so that he could return in the morning to get the car. You left at about 12.30 am. You ended up driving Josh's car intending to go to your home in The Patch, a drive of approximately five minutes.
5 The route you took went along Kallista-Emerald Road. The road was windy and there was a left bend in the road just prior to where the car left the road. Despite street lighting, the road was quite dark with a speed limit of 60 kilometres an hour. A number of residents in the area heard the car before hearing the sound of the collision when it was driven off the road soon after the left bend. It appeared to have hit a fire hydrant and a warning side on the left shoulder then travelled over the edge of a declining embankment. There were broken trees and vegetation leading to the resting point of the car which was located upside down in a driveway below the bank.
6 A witness who lived near the accident site was woken by the crash. He looked out the window and saw you distressed and screaming things like, "Fuck what have I done." You banged on his door trying to find a torch. A number of other residents came outside and emergency services were called. Those who went to Josh saw that he had no sign of life. Other witnesses described you as being in an agitated or shocked state, swearing, yelling and blaming yourself. When an enquiry was made as to your well-being you said that you were all right, "and it should have been me, I can't live with what's happened, he trusted me, he trusted me."
7 Police arrived at the scene at 12.48 am and observed the car before speaking to you. You were clearly very distressed and crying. You told police that Josh had had too much to drink so you were giving him a lift home in his car and that you just lost it and did not know what happened. A preliminary breath test was taken and you had a reading of .055. You were then arrested and cautioned. You were taken to Dandenong Hospital by ambulance accompanied by police and a blood sample was taken. This was analysed at the Victorian Institute of Forensic Medicine and found to have blood alcohol concentration of .038 grams of alcohol per 100 millilitres of blood.
8 The road was examined by police who identified two tyre scuff marks in the form of critical curve speed or yaw tyre marks, the first of which commenced approximately a metre from the exit of the left-hand curve just before the point the vehicle left the road. The path of the vehicle followed a curved trajectory before it crossed onto the shoulder of the road and travelled over the embankment. Police made measurements of the tyre marks and also conducted surface friction tests on the road. A police reconstruction expert proffered the opinion on the basis of the information regarding the accident that the driver of the car had oversteered to the left after negotiating the left-hand curve. The car was travelling at a minimum of 96 kilometres an hour at the commencement of the tyre scuff marks. There were no mechanical defects in Joshua's car that were a cause of the accident.
9 Dr Angela Sungaila prepared a report for a back calculation of the blood alcohol content and an opinion of driving impairment. She found the possible body alcohol range of you at 12.30 am was in the range starting at .061 per cent but that the blood alcohol level may have been lower than that if you had unabsorbed alcohol in your stomach. You did not suggest that circumstances exist such as to warrant a reduced reading. She concluded,
"It is possible to attribute some impairment to the calculated alcohol levels at the time of your driving and collision. The impairments due to alcohol alone are not likely to have rendered you unable to maintain proper control of the car. It is certain that excess speed and your probable lack of driving experience would have added to any impairment that might have been caused by alcohol alone."
10
You were interviewed by police on 18 March 2017, some two months later. During that interview you said that when you and Josh went to leave you told him not to drive as he was really drunk. Josh then threw you his car keys, so you got in his car and drove. You thought it was the safest option for you to drive. You tried to take back streets and then you reached the
Kallista-Emerald Road. You did not know what happened. You were distracted for two seconds looking at the radio, one moment you were facing down the road and the next you were off it and rolling down a hill. You said you did not feel drunk or intoxicated whatsoever when you got in the car. You admitted you had never had a drivers licence or a learners permit but had experience driving on farms though not on sealed roads. You said you could not recall the speed limit but did not think you were speeding as it felt normal. You said you were familiar with the road and that it was dangerous.
11 The prosecution relies upon the combination of the following factors to establish your driving was culpable in that it was negligent. Your speed and manger of driving as described above involved oversteering and after negotiating the curve and speed at 96 ks in a 60 k zone. Your blood level of at least .06 and some impairment to driving when at that level. Your lack of experience driving and status as an unlicensed driver, adding to the impairment caused by alcohol alone. And your inattention, being distracted immediately prior to driving off the road.
12 By your plea you have accepted those particulars of negligence.
13 Victim impact statements were received by a number of Josh's relatives and friends. I take this material into account. A number of these were read in court. Others were read by the prosecutor and others handed up to me. Each of these eloquently expresses the impact of your offending on them with the death of their cousin, grandson, brother, boyfriend and child. Clearly the impact of Josh's death has been devastating. A young man with such a promising future has met a traumatic death as a result of your culpable negligence. Feelings that include sadness, anger, emotional pain and guilt are expressed as is the trauma of dealing with every day reminders of Josh and the recognition and acceptance that he will not experience the joys of maturing and growing into a young man.
14 The impact of his death has caused immeasurable harm to family members and the disruption and enjoyment of life for both each of them individually and as a family unit. Simply put by Josh's cousin,
"Most of all I'm just said, life has changed forever. Our family is forever broken. A piece of our hearts is missing and we have to find a way to live with that because of an accident. I struggle describing Josh's death as an accident because it makes it sound less than the catastrophe it is."
15 The burden for those left to bereave is extremely difficult.
16 You are now aged 22 and seven months, you grew up in the Dandenong Ranges area. You have a younger brother and sister. Your parents first separated in September 2012, reunited for various periods then finally separated when you were completing VCE. You often took on the role as peacemaker between your parents, a burden that was challenging and distressing for a teenager. For periods of time during your late schooling years you lived with Lyn McArthur, the mother of your friend Harry. When your parents finally separated you lived with your mother and siblings. You have been working with your father who is a plasterer. You commenced and completed an apprenticeship within three years and will have work available to you on your release from custody. Your parents and family were all in court to support you.
17 When aged 14 you were diagnosed with Type 1 Diabetes. This diagnosis was not forthcoming until after you had been ill for about three months, and you were then as a consequence of blood test results rushed to Royal Children's Hospital with dangerously high blood sugar levels. You have struggled with this diagnosis and its consequences. You are insulin dependent and need to self inject four times daily. You need to have available at all times two different types of insulin injections, an EpiPen device in case of hypoglycaemia, oral glucose such as jelly beans or chocolate, and to be able to finger prick and self monitor your blood sugar levels. As a consequence of your condition you were advised by your GP that you should not obtain a drivers licence.
18 I received a report from Mark Tatti, clinical psychotherapist dated 15 June 2018. In 2013 you were referred for psychotherapy because of anxiety and depression relating to your diabetes condition. You have been seeing Mr Tatti regularly since August 2013. It is his opinion that you have had difficulty accepting your diabetes diagnosis and that you have never fully accepted or taken ownership of the treatment required to optimally manage your condition. Your issues were complicated by the family dynamics at home and conflict between your parents.
19
I also received a report from Jeffrey Cummins, clinical psychologist dated
19 June 2018. I take that material into account. He is of the opinion that you are suffering from an adjustment disorder with mixed anxiety and depressed mood triggered as a result of you being diagnosed and treated for Type 1 Diabetes and that you have also suffered PTSD as a consequence of the accident and death of Josh. Mr Cummins is of the opinion that given you suffer Type 1 Diabetes, and have developed a psychological disorder in response to that condition, that prison will be more onerous for you and it is likely your mental state will deteriorate.
20 Your counsel submitted and the prosecution conceded that it is likely that imprisonment will be additionally burdensome for you because of your medical condition and the stress and concern surrounding the uncertainty of your access to medical equipment, medication and dietary requirements. It was not submitted that prisoners are not adequately treated for this condition in a custodial environment, rather that your time in custody with this condition and associated psychological issues that you have connected to it were such that prison will be more burdensome for you. I accept that the service of your term of imprisonment will be more harsh on you because of your illness than that of another person who is in good health. I accept it is a matter that I should take into account.
21 You have pleaded guilty at the earliest possible opportunity. You have spared the community the time and expense of a criminal trial. There has been no contested committal, victims were not re-traumatised by reliving the accident, accident experts were not challenged, and you have accepted responsibility for your actions.
22 I accept that you have displayed genuine remorse for Joshua's death. This was apparent to all immediately after the accident. You have expressed deep and I accept real sorry for your actions and devastation for the consequences suffered by Josh's family and friends in a letter to the court. Mr Cummins is of the opinion you are riddled with guilty, shame, remorse and embarrassment. I accept that in addition to remorse you are generally contrite, understanding the impact of your actions on Josh's family and also the seriousness of this offence. Mr Tatti regards your regret and remorse as authentic and consistent. He sees it as directed to Josh's family and also your own siblings and parents regarding the stress and worry for them given your predicament. This remorse combined with your pleas of guilty entitles you to a significant reduction to the sentence I would otherwise impose.
23 I also take into account the significant amount of character references that were tendered on your behalf and the support of your family and friends, particularly Ms McArthur.
24 You have no prior convictions. The material provided to me reflects your good character. I was informed that you are unable to obtain your licence because of your medical condition and that you did not therefore attempt ever to get your licence. Your pleas of guilty, remorse, work ethic, family support and lack of any prior mattes or any suggestion of any significant antisocial or rebellious nature augur well for your rehabilitation. You have excellent prospects for rehabilitation.
25 I also take into account your relatively young age. However with offending of this serious nature, the objective gravity of it and prevalence of this kind of offending amongst young males in our community, general deterrence plays a significant role in the sentencing process. As noted in the Court of Appeal in Wooden,
"There are few crimes that cause such suffering as culpable driving causing death. In the majority of cases young people are involved. The deceased is cut off in the prime of life. The victims are not limited to the deceased but include family and close friends. The offender is often a person of otherwise blameless character who behaves irresponsibly on one occasion with terrible consequences. In most cases factors personal to the offender have to be moderated in the sentencing process in the interests of general deterrence, even where specific deterrence is of little moment. Parliament has increased the maximum penalty on several occasions, the community is increasingly intolerant of drunken and dangerous driving and the courts have rightly responded to those concerns."
26 As indicated above your culpable driving was constituted by a combination of speed, inexperience, inattention and level of alcohol consumption. The prosecution submitted that given those features that this offence fell in the upper middle range, whilst your counsel argued a categorisation as middle range of seriousness.
27 Little assistance can really be obtained from definitive characterisations of offending of this type. I accept as I must that there were a number of features of your driving on this night that combined to result in you being criminally responsible for the death of Josh. One can readily think of situations where a driver's actions reflect a higher or lower level of culpability. The fact remains the manner of your driving this night makes you criminally responsible for Josh's death.
28 The Crown submitted an immediate custodial sentence was the only appropriate disposition and your counsel conceded that was the only option available to me. These cases involve a very difficult sentencing exercise. The authorities are clear that in these kind of cases where the consequences of the driving are so serious I am required to send a message to other young drivers. In sentencing you I must have regard to a range of matters such as the seriousness of your offence, your culpability for it, your personal circumstances and those of the victim and their family. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that offenders particularly young men like you, are rehabilitated and reintegrated into society.
29 If you could please stand up Mr Corbier.
30
In relation to the charge of culpable driving causing death, you are convicted and sentenced to a term of imprisonment of five and a half years with a
non-parole period of three years.
31 You will be disqualified from obtaining a licence for a period of two years.
32 Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have sentenced you to a term of imprisonment of seven and a half years with a non-parole period of five years.
33 I will have included on the record a reference to your medical condition and the needs that you have in relation to that.
34 Are there any other matters?
MR HUGHAN: Your Honour, my recollection was Mr Cummins respectively suggested that is report also be made available to the Correctional authorities - - -
HER HONOUR: Sure.
MR HUGHAN: - - - in terms of the mental health aspect of the - - -
HER HONOUR: Yes I'll make sure also that the medical material that you tendered is available as well.
MR HUGHAN: If Your Honour pleases.
HER HONOUR: Thank you.
MR HUGHAN: Now I know my learned friend is going to ask Your Honour about the 464ZF, I can't recall if I've spoken to my client about that.
HER HONOUR: Do you want to do that now.
MR HUGHAN: Could I please Your Honour?
HER HONOUR: Yes certainly.
MR HUGHAN: When that application is made Your Honour, it's consented to.
HER HONOUR: Thank you. Have you got the order there Mr Brown?
MR BROWN: Yes I have Your Honour, notice was given.
HER HONOUR: You can stand down please. Thanks.
- - -
0
0
0