Director of Public Prosecutions v Costello

[2023] VCC 2233

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-02191

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYAL COSTELLO

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2023
DATE OF SENTENCE:	29 November 2023
CASE MAY BE CITED AS:	DPP v Costello
MEDIUM NEUTRAL CITATION:	[2023] VCC 2233

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Dangerous driving causing death – Drive without displaying P plates – Breach of driver licence condition – Offending at lower end of seriousness – Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 319; Road Safety (Drivers) Regulations 2019 s 56; Road Safety Act 1986 s 18AA; Sentencing Act 1991 ss 5(2H), 6AAA, 18, 89(1).

Cases Cited:Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168.

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Porceddu for Sentence Indication Hearing Ms M Mahady for Plea and Sentence	Office of Public Prosecutions
For the Accused	Mr B Newton	McFarlane Criminal Lawyers

HIS HONOUR:

Introduction

1Kyal Costello, you have pleaded guilty to one charge of dangerous driving causing death contrary to s 319 of the Crimes Act 1958, which carries a maximum penalty of ten years imprisonment (Charge 1).

2You have also pleaded guilty to the following related summary offences:

(i)one charge of drive without displaying P plates contrary to s 56 of the Road Safety (Drivers) Regulations 2019, which carries a maximum penalty of 3 penalty units (Summary Charge 4); and

(ii)one charge of breach of driver licence condition contrary to s 18AA of the Road Safety Act 1986, which carries a maximum penalty of 20 penalty units (Summary Charge 5).

3You have also admitted your criminal record.

Circumstances of the offending

Overview of offending

4A summary of prosecution opening was tendered on the plea and may be summarised as follows:

5You were born in 2000 and were 20 years old at the time of this offending.

6On 13 July 2021, you were driving a vehicle on Old Sale Road in Drouin West when you collided with the 79 year old victim, Beryl Tyson, who was riding a bicycle. She died at the scene. Your vehicle was a white 2007 Toyota Hilux utility, a two-door/single cab utility fitted with an aluminium flat tray. Ms Tyson was riding a white e-bike.

7Prior to the collision, both your Toyota and the bicycle were travelling in the same direction along the road, with your vehicle approaching the e-bike from behind. Both you and the victim were on the correct side of the road, that is, in the left-hand lane. As the victim approached the entrance to the Drouin West cemetery, the rear of her e-bike was impacted by the front passenger corner of your vehicle. At the time of impact, the e-bike was on the outermost edge of the lane, namely on the left-hand side of the fog line, which was on the left-hand edge of the road. At the same time, the passenger side tyres of your vehicle were travelling on or about this fog line. That is, the impact occurred at the fog line on the outermost edge of the left-hand lane. The collision caused the death of the victim.

8You caused the death of Ms Tyson by driving your vehicle in a manner that was dangerous to the public, namely by failing to pay proper attention whilst driving, for a period of approximately 4.5 seconds, failing to keep a safe and proper lookout and failing to be in proper control of your vehicle. (Charge 1 – Dangerous driving causing death)

Further details

9On 13 July 2021, prior to 12:00pm, Jessica Storer was driving her vehicle, with a passenger, along Old Sale Road, having just turned from Main Neerim Road.  She observed a rider on the west bound lane. Ms Storer saw that the rider was on the left-hand side of the white line which was on the far left hand side of the lane.  Further, she saw that the rider was wearing a pink-coloured long sleeve top and that there was yellow plastic wrapping on the back of her bicycle. The prosecution case is that the rider was the victim in this matter. Ms Storer then dropped her passenger off at his residence and proceeded to head back to Old Sale Road.

10At 11:59am, a call was made from the your mobile phone to ‘000’.

11At about 12:00pm, Damian Cameron was driving east along Old Sale Road in Drouin West.  When in the vicinity of Stock Road, Mr Cameron observed a utility parked on the side of Old Sale Road just outside the cemetery.  He observed an ‘object’ on the road, unknown to him at that time, which was in fact the victim. Mr Cameron pulled over and saw you using your mobile phone. You were alone. Mr Cameron realised the ‘object’ on the ground was a motionless person. He heard you making a call to emergency services. Mr Cameron heard you say that the person had come out from the driveway into your path and that there was nothing that you could do. Mr Cameron observed that you were in shock.

12As Ms Storer was approaching Old Sale Road, from Stock Road, she came upon the scene of the collision. She saw a woman lying on the road and a bicycle on its side a few metres away. She recognised that the woman was the same woman she had observed a few minutes prior.  Ms Storer called ‘000’.

13At approximately 12:10pm, First Constable Aaron Bowen and First Constable Sean Webb arrived at the scene. Paramedics were already present.

14At approximately 12:19pm, a preliminary breath test was conducted on you.

15After the breath test was conducted, you and First Constable Bowen had a conversation during which you stated that you were going about ‘60 kilometres’, that you had seen the bike rider so you had given her a berth of at least a metre and a half, and that she rode wider than the driveway and rode straight in front of your car. You said you had been heading home. You were not under arrest at this time.

16At approximately 1:33pm, you were arrested.

Interview

17On the same afternoon you were interviewed. A detailed summary of the interview is reproduced in the prosecution opening which I will not reproduce in these reasons. You essentially conveyed that you saw the rider and moved towards the centre of the road so you would not be near her when you passed. You went on to say that the rider moved out from the gravel driveway in front of your car.

18During the interview, you drew a diagram depicting the position of both your vehicle and the rider on the road. You depicted that about half of your vehicle was positioned in the right-hand lane.

Toxicology

19Toxicological analysis of the blood taken from you on the day of the collision did not reveal the presence of common drugs or alcohol.

Condition of the road at the time of collision

20At the time of the incident, visibility on Old Sale Road was clear, bright and very good. The road was dry.

21The speed limit was 80 kilometres per hour.

22Old Sale Road in the collision area is a single carriageway aligned in a general east-west direction. It consisted of a bitumen surface in good condition with provision for one traffic lane in each direction, with the lanes separated by continuous double white lines along the approximate centre of the road.  Fog lines were painted along the outer edge of both lanes, beyond which lay a thin piece of bitumen, gravel shoulders, then grass and gravel reserves leading to a cemetery on the southern side and farm land on the northern side. The road at the area of the collision was measured at 6.7 metres in total width which included the east bound lane at 3.3 metres and the west bound lane at 3.4 metres.

23The collision scene was in the area of the driveway to the Drouin West Cemetery.  The sight distance to the east was approximately 100 metres. The collision occurred in the westbound lane.

Expert evidence of vehicle collision reconstructionist

24Lindon Paul Walker is a vehicle collision reconstructionist attached to the Collision Reconstruction and Mechanical Investigation Unit at Victoria Police. He attended the scene and has provided an opinion regarding the collision that caused the death of the deceased. His opinion includes the following:

(a)   Both the Toyota and the bicycle had been travelling in a westerly direction on the Old Sale Road.

(b)   The area of impact was located at the southern edge of the westbound lane and was indicated by a single thin tyre scuff mark on the bitumen surface between the southern fog line and the bitumen edge. This scuff mark commenced approximately 18 metres east from the cemetery driveway and was aligned parallel to the road. It measured 1.9 metres in length. There was evidence of approximately 250mm of scuffing to the rear tyre of the bicycle.

(c)   The passenger side tyres of the Toyota would have been travelling on or about the southern fog line at the time of impact.

(d)   The scuff marks on the road surface indicate the driver of the Toyota steered to the right when the impact occurred.

(e)   The victim came to rest 33 metres west of the area of impact. The victim, when unseated from the bicycle at impact, was initially thrown onto the bonnet of the Toyota, then fell to the passenger side, then under the passenger tyres.  This indicates the victim had been rolled, while under the vehicle, to her rest position.

(f)    The bicycle came to rest 31.5 metres west from the area of impact.

(g)   The Toyota had sustained an impact to the front passenger side consistent with this area of the vehicle having impacted the bicycle and the rider.

(h)   The victim’s bicycle had sustained an impact to the rear.  The rear mud guard was buckled and had been forced forward onto the rear tyre.

(i)    The Toyota was travelling at not less than 79 kilometres per hour at the time of impact.

(j)    On inspection, Mr Walker was unable to identify evidence of pre- or post-impact emergency braking from the Toyota.

(k)   The windscreen of the Toyota was clean.

25In summary, the opinion of Mr Walker is that as the bicycle was approaching the entrance to the Drouin West cemetery, it was impacted from behind by the front passenger corner of the Toyota, and the impact occurred at the southern fog line of the west bound lane. The impact caused the victim to become unseated and separate from the bicycle. She was thrown onto the bonnet of the Toyota where she rolled from the bonnet and down the passenger side fender. She then fell to the road and rolled under the passenger side wheels of the Toyota.

Expert evidence of motor mechanic

26Motor mechanic and mechanical investigator David Gordon Giulieri conducted a mechanical examination of the Toyota. He observed areas of damage to the passenger side front. He examined various parts of the vehicle including the brakes, wheels and tyres, suspension and steering. He drove the vehicle. His examination did not reveal any faults, failures or conditions that could have caused or contributed to the collision.

Medical investigation into the death of Beryl Tyson

27Dr Melanie Archer, a medical practitioner in forensic pathology, performed an external examination of the body of the victim. Dr Archer’s opinion includes that she suffered numerous injuries including facial, skull, pelvic and spinal fractures and multiple soft tissue injuries. The injuries were severe and of a type expected to cause rapid unconsciousness and death. Dr Archer’s opinion is that Ms Tyson’s death was caused by multiple injuries sustained in a bicycle incident.

Nature and gravity of the offending

28The offence of dangerous driving causing death is, by its nature, a serious offence as it involves the death of a human being. The seriousness of the offence is also reflected in the maximum penalty set by parliament, being 10 years imprisonment, and its classification as a Category 2 offence requiring a term of imprisonment to be served unless a statutory exception can be established.

29In this instance the charge is particularised as you failing to pay proper attention while driving for a period of approximately 4.5 seconds, failing to pay proper attention and failing to be in proper control of your vehicle.

30Mr Newton who appeared on your behalf, with reference to Director of Public Prosecutions v Neethling,[1] highlighted the matters which are absent in this case, including that there was no evidence of drugs or alcohol, no evidence of use of a mobile phone, that you were not sleep deprived and that there was no evidence of speeding. Further, following the collision you stopped immediately and called 000. In summary, Mr Newton submitted that in all the circumstances, the gravity of the offending and your moral culpability fall towards the lowest range of examples of dangerous driving causing death. Mr Porceddu, who appeared on behalf of the Director of Public Prosecutions, did not take issue with this characterisation of your offending.

[1] (2009) 22 VR 466.

31As has been noted by the Court of Appeal in Director of Public Prosecutions v Weybury, while terms such as ‘towards the lowest’ or ‘low’ may be problematic when assessing where offending sits within a range,[2] in this instance given that your conduct lacks many of the common aggravating features present in cases of dangerous driving causing death, in all the circumstances, I accept your offending does fall towards the lower end. That is not in any way to diminish the inherent seriousness of the charge as noted above. In this instance your lack of attention, if only for a very short time, resulted in tragic consequences.

[2] DPP v Weybury [2018] VSCA 120, [54].

Victim impact statements

32Five victim impact statements were tendered: three from Beryl Tyson’s children, one from her daughter-in-law, and one from a family friend. Debrough, Jedda, Adam and Shane Tyson speak with a united voice about Ms Tyson’s devotion not only her family but also the wider Drouin community. They each eloquently convey that Beryl Tyson was a beloved mother, grandmother and community advocate who took on many social activities, including helping at the local food bank, volunteering with many local organisations, beekeeping and working as a school bus supervisor. Although advanced in years, Ms Tyson stayed active and fit, cycling every day to maintain her physical and mental health.

33Because Ms Tyson was killed during a period of strict pandemic lockdowns, her family was not able to grieve her passing appropriately. Shane Tyson describes that it was very difficult under such conditions to gather together as a family in order to support each other. Only 10 people were permitted to attend the funeral in Drouin. Jedda Tyson describes that the offending has also had a financial impact on her family, due to the loss of work suffered through mental health setbacks, as well as having to take time off work to attend court hearings.

34It is profoundly clear that Ms Tyson’s death has created what Debrough Tyson describes as an ‘emptiness’ in the lives of those who loved her.

35I take the contents of all five victim impact statements into account and I wish direct the following comments to the family of Ms Tyson:

36There is nothing this Court can say or do that will bring back Beryl Tyson, or ease your significant grief. The sentence I must impose can in no way be a measure of the worth of the life of Ms Tyson. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.

Personal circumstances

37You are now 22 years old, a middle child with two brothers and loving parents. You were educated at Bayswater North Primary School and later at Yarra Hills Secondary College, where you successfully completed Year 10 before leaving school to join the workforce on a full time basis. You commenced working as an apprentice carpenter at your father’s construction company, where you remained for the next three years.

38When you were 18 years old, you commenced working as a stable hand and as a jockey in harness horse racing. You balanced this with the work you were undertaking for your father.

39When you were 19 years old, you moved to Sunbury and worked full time with a horse trainer.

40Your parents separated when you were 18 years of age. You lived with your mother in Croydon, and just prior to this offending, you were living with your ex-partner in Seaford. Whilst living at Seaford, you commenced horse training work at Quinlan Stables in Drouin West; you were working there on the morning of this collision and continued working there for another year, moving from full time to part time in order to start your own business.

41In December 2021, you commenced setting up your own landscaping business and became the registered director of this company, Baron Mowing and Maintenance Pty Ltd. You provided property maintenance services to a broad cliental, including aged residential care facilities and childcare centres, as well as private property developers.

42Having a driver licence was essential to the performance of your work duties, with your worksites being located around metropolitan Melbourne and the eastern rural areas of Victoria. Due to incurring too many demerit points, your licence was suspended for a period of eight months from 9 February 2022 to 8 October 2022. During this period, you were apprehended for driving with a suspended licence on three separate occasions – twice in July and once in August. You were consequently fined $1,000 and your bail conditions on this current offending were varied on 14 December 2022 to prohibit you from driving a motor vehicle.

43Despite being prohibited from driving, you have continued to work, performing manual labouring duties, relying on friends and family to drive you to worksites.

44Eleven character references from family, friends and colleagues were tendered on the plea. They speak with a united voice about your work ethic, kind-heartedness and caring disposition. Several referees note the deep sorrow you have exhibited for the pain you have caused to the victim’s family, as well as your own, through your offending. I take these references into account.

Sentencing considerations

45Mr Newton highlighted a number of matters in mitigation.

46The first is your plea of guilty, which you entered following a sentence indication hearing before me just prior to trial. I also note that you ran a contested committal. Nevertheless, your plea has saved court time and expense, and demonstrates your acceptance of responsibility. While the backlog of cases as a result of the pandemic has now eased, there are still some pandemic related delays and thus a moderate amelioration in sentence is still able to be taken into account.[3]

[3] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].

47Regarding your prospects of rehabilitation, I note the following. You are now 22 years old and at the time of the offending you were 20. You have only one prior traffic matter relating to an incident of driving whilst suspended in 2020, where you were fined without conviction. As noted above, following the offending, you incurred demerit points which resulted in a licence suspension for a period of eight months. It is unfortunate that you continued to drive during this period, indicating a certain disregard for road rules and community safety. However, this must be balanced against the factors of your relative youth, your otherwise good character, a lack of any problematic alcohol or drug use, your supportive family and friendship circle, and your consistent work history.  I also note that in the short time you have been on remand since the matter resolved, you have engaged in educational courses offered to you in custody. In all the circumstances, I consider your prospects of rehabilitation to be very good.

48The primary sentencing consideration in a case such as this is general deterrence. The court must emphasise that otherwise competent drivers are obliged to pay due care and attention to the safety of other more vulnerable road users, particularly cyclists, with whom they share the roads. It must be emphasised that people driving cars in the vicinity of cyclists must remain alert at all times and exercise caution when overtaking, especially on narrow roads. Such road conditions, whilst challenging to a degree, are not uncommon.

49As to specific deterrence, for similar reasons outlined in relation to your rehabilitation, it carries less weight in this instance.

50As noted, dangerous driving causing death is an offence that requires a term of imprisonment to be served unless an exception pursuant to s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’) is able to be established. You have not sought to argue any of the exceptions and thus concede that you must receive a term of imprisonment.

Sentence

51Mr Costello, would you please stand.

52Kyal Costello, on Charge 1, dangerous driving causing death, you are convicted and sentenced to 14 months imprisonment. I direct that you serve 6 months before becoming eligible for parole.

53On Summary Charge 4, drive without displaying P plates, and Summary Charge 5 breach of driver licence condition, you are convicted and fined $500 on each charge.

54Pursuant to s 18 of the Sentencing Act, I declare that 9 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

55Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 2 years imprisonment with a non parole period of 15 months.

56Pursuant to s 89(1) of the Sentencing Act, as the charge is a serious motor vehicle offence, any motor vehicle licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of 18 months from today.