Director of Public Prosecutions v Cowburn

[2019] VCC 1918

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02291

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN COWBURN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	DPP v COWBURN
MEDIUM NEUTRAL CITATION:	[2019] VCC 1918

REASONS FOR SENTENCE
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Subject:  Dangerous driving causing death
Sentence:  3 years community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Ellis
For the Accused	Mr I. Hone

HIS HONOUR:

1You have pleaded guilty to one charge of dangerous driving, which caused the death of Kenneth Rich.  The offence occurred on 14 April 2017 which was
Good Friday.  The maximum sentence for this offence is presently ten years' imprisonment.  It was increased to that maximum in 2008.  Prior to the increase in sentence, the maximum sentence was five years' imprisonment.  The seriousness of offending such as this, can thus be seen that Parliament saw fit to double the maximum sentence in 2008. 

2The circumstances of your offending are contained in the summary of prosecution opening that was tendered in evidence and read in open court by the prosecutor Ms Ellis.  Your counsel, Mr Hone, accepted that the prosecution opening was accurate, and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances, it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way.  These sentencing remarks should, however, be read with what is set out in more detail in the summary.

3The deceased, Mr Rich and his daughter, Charlene, set out on a bike ride shortly before 9 am.  They were riding along the Princess Highway at
Nar Nar Goon.  You were driving your Toyota Hilux utility in the same easterly direction, when your vehicle struck the bicycle being ridden by Mr Rich.  As a result of the collision, he suffered catastrophic injuries, from which he soon after died.

4The evidence shows that shortly before the collision, your attention was diverted from driving to observing Ms Rich in the side mirror of your car.  She was just commencing to ride her bike, having stopped to adjust her gears.  Her father, Mr Rich, was just ahead of her.  At least two other drivers observed Mr Rich on the roadway, riding his bike, and they managed to steer around him.

5For some reason, you did not see him until the last moment, and the side mirror of your vehicle first struck Mr Rich.  Why you did not see him remains unclear.  You may have been distracted for your concern for Ms Rich.  Your vision of him may have been in part, obscured, by one of other vehicles that in fact passed him.  What is clear is that you did not see a cyclist on the road, when you ought to have done so.

6You failed to keep a proper lookout when driving your vehicle, and as a result, the life of a devoted family man, who had served the community as a police officer, has been lost.

7The prosecution case against you accepted by your plea of guilty to the charge, is that in driving your vehicle, you failed to keep a proper lookout.  Your driving was otherwise unobjectionable.  You were driving within the speed limit, your vehicle was roadworthy, and nothing about it contributed to the collision.  You had not been observed before the collision to be speeding or driving in any way that could be considered unsafe.  There is no evidence you were distracted by any activity within the car, such as attending to a radio or mobile phone or like device.

8You told police you were observing Ms Rich in your side rear vision mirror.  You were not affected by drugs or alcohol.  I have concluded that this collision causing the death of Mr Rich, was caused by a moment of inattention on your part, in which you took your eyes off the way ahead, and you did not see
Mr Rich ahead of you riding his bike, as you should have.

9Having said that, a moment of inattention by a driver in charge of a motor vehicle self-evidently in some circumstances is sufficient to cause a collision and either death or serious injury and that is what happened here.  This type of offence, where there is no mens rea, or no intention to kill or injure or otherwise cause harm, but which involves but a moment's lack of concentration, has troubled sentencing courts for some time.  That is because the most precious of all things, namely human life, is lost.

10The New South Wales Court of Appeal in R v White [2002] 55 NSWLR 252 published an amendment to its earlier guideline judgment in R v Jurisic [1998] 45 NSWLR 209. Chief Justice Spigleman again repeated what he said at Jurisic at p.284,

'A non-custodial sentence for an offence against s.52A should be exceptional, and almost invariably confined to cases involving momentary inattention or misjudgement'.

11In this state, the Victorian Court of Appeal as recently as 2016 said in
DPP v Borg [2016] VSCA 53 at paragraph 74, a case where the DPP appealed a sentence where the offender had pleaded guilty to two charges of dangerous driving causing death, and two charges of dangerous driving causing serious injury.

'At first blush, it is difficult to see how any sentence other than one of an immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation, in respect of conduct as objectively grave, as the conduct you have engaged in, where an innocent person driving herself to work lost her life because of what you did'.

12In sentencing for this offence, the Court of Appeal has emphasised that there is a premium on human life and general deterrence is an important factor.  For that reason, youth was to be given less weight as a subjective factor, than in other types of cases, and a non-custodial sentence for this kind of offence, is exceptional.  See R v Neethling [2009] VR 466, and the judgment of the Court of Appeal in New South Wales in R v Jurisic.

13In R v Oats [2007] VSCA, the Victorian Court of Appeal emphasised that general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury.  It added that a person who kills or injures another while driving dangerously, is likely to receive a significant time of imprisonment.  Cordy qualified that statement of principle by noting that any sentence which is imposed, must take account of variations and the moral culpability of the person responsible, and that a custodial sentence will usually be appropriate for this offence, except where the offender's level of moral culpability is low.

14The Court of Appeal in Phillips v R [2012] 222 ACR 149 at pp.159-160, set out ten factors which may influence the mitigatory effect of a plea of guilty. They include an acceptance of responsibility for the offending, and that the plea of guilty evidence is remorse.

15You have pleaded guilty to the charge, and that is to your benefit.  But your plea of guilty, you have saved the time and cost of the trial, and you have saved some of Mr Rich's family from having to give evidence, re-living these events.

16By your plea of guilty, you had admitted responsibility for your crime, and you have facilitated the administration of justice.  Here, the matter proceeded to this court by way of hand-up brief.  You entered a plea of guilty after a sentence indication was given by me.  Although your plea of guilty was not made at the earliest opportunity, I nevertheless treat you as having pled guilty at an early time.  Because you have pleaded guilty at an early time, the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  I accept that you are remorseful for your offending.

17The Court of Appeal in this state has affirmed the suitability of making a community corrections order, in a range of cases, as a disposition capable of simultaneously promoting the competing interests of an offender and the community.  See Boulton v R later confirmed in DPP v Borg [2016] VSCA 53 at paragraph 110. In Boulton, the Court of Appeal said at paragraph 101,

'The community corrections order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, such as for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape, and some categories of homicide.

18The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable as satisfying the requirements of proportionality, parsimony, and just punishment, while affording the best prospects for rehabilitation'.

19In Borg, the Court of Appeal examined in detail the nature and effect of a community Corrections order. It said in therein at 107,

'Because of the combined punitive and rehabilitative effect of the community corrections order, the court said sentence in court should
re-examine the conventional wisdom about the types of offending which ordinarily attract the term of imprisonment'.

20Also in Borg, the Court of Appeal referred to what it had said in McGrath v R [2015] VSCA 176 at paragraphs 30 to 32,

'Nothing said in Boulton altered the principle of parsimony which has always been a fundamental sentencing principle under the Sentencing Act 1991. The sentencing judge has always been obliged to impose the least severe sentence necessary, to achieve the purposes of sentencing. That obligation is enshrined in s.5(3) and (4) of the Act, which obliged the court not to impose a sentence of condiment, unless it considers that the purpose or purposes for which the sentence is imposed, cannot be achieved by a sentence that does involve confinement.  Those provisions, which are of long standing, were recently supplemented by s.5(4c) which requires a court not to impose a sentence of confinement, unless it considers that the relevant sentencing purposes cannot be achieved by a community corrections order, which conditions attached.  The judge's obligation is as it always has been, to give adequate consideration to whether a sentencing option, other than a substantial and immediate custodial term of imprisonment, will be appropriate.  The option of a community corrections order must be amongst the alternative dispositions to be considered.  In Boulton, the court pointed out that an appropriate case of a community corrections order can achieve all the purposes of sentencing and can do so in cases which might previously have been thought to require a sentence of imprisonment.  Plainly enough, the availability of the option of the community corrections order does not mean that the imposition of a custodial sentence is presumptively erroneous'.

21The court in McGrath endorsed what was said in Hutchinsonv R [2015] VSCA 115 where Justice of Appeal Priest with concurrence of Justice of Appeal Ashleigh said at paragraph 53,

'Acknowledging that a community corrections order might be appropriate, even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment.  It should not be thought that Boulton offers a get-of-gaol free card, in situations where a sentence of imprisonment is necessary in the given case, to satisfy the various purposes for which a sentence may be imposed.  One of the purposes for which a sentence may be imposed is of course, to punish the offender to an extent and in a manner,  which is just in all the circumstances.  There will be cases, indeed, many cases where having regard to the seriousness of the offending, a community corrections order will be insufficiently punitive to satisfy the need to punish the offender in a manner in which all the circumstances is just'.

22These are general principles that need to be properly applied in arriving at the correct sentencing disposition of you.  The sentence imposed of course, depends upon all of the circumstances of the case.  I have already said that I regard your offending as being that of a momentary inattention to the road ahead, and because of this, you failed to observe the presence of Mr Rich, riding his bike on the roadway in front of you.  I regard your moral culpability for this offending as low.

23Your offending falls into the lower range of offences of this kind.  I understood the learned prosecutor not to disagree, and she appropriately conceded at the plea indication hearing, that a disposition that did not immediately confine you in prison was within the appropriate sentencing range.  In my judgment, that was a concession properly made by the prosecution, in all of the circumstances of this case.  In my judgment, there is less need for any sentence imposed upon you, in the circumstances of this exceptional case to emphasise application of the principle of general deterrence.

24The Sentencing Act 1991 requires that in passing sentence, I must take into account the impact of your offending on any victim. On the plea I received a number of victim impact statements from Mr Rich's wife and children, his mother-in-law, his son's partner, and other relatives and friends. These statements were either read by the makers of them, or by the prosecutor. I found all of this evidence very moving. I have re-read these documents in my chambers, whilst giving consideration to these matters.

25What comes through, very clearly, is that by your dangerous driving, you caused the death of a husband, father, son, son-in-law, and a friend, who was adored by all, who were privileged to have made his acquaintance.  You will have to live with the consequences of your actions for the rest of your life.  The other obvious thing that comes through from this evidence, is the extreme sense of grief and devastation caused to Kenneth Rich's immediate family, loved ones, and friends.  A sense of loss, a sense of frustration, and the sense of bewilderment I think, will last for a long time.  All of this comes through from the victim impact statements.  Unfortunately, nothing that I can do in this court, can ameliorate these feelings.  But I do take the impact of the victims into account, in arriving at an appropriate sentence.

26I turn to some matters relating to you.  You are now 61 years of age.  You have no relevant prior convictions, safe for a traffic infringement in 1978.  In this day and age, with detection of errant driving by laser and cameras, that is a reasonably impressive driving record, upon which you are entitled to ask for favourable consideration.  You are otherwise a hardworking married man, engaged in the trade of bricklaying.  A number of references tended on your behalf speak well of you as a friend and relative, who helps others, and contributes to the community in a number of ways.

27I received into evidence a letter from your treating general practitioner, who has diagnosed you with suffering from ongoing stress, anxiety, and insomnia, as a result of being involved in the death of Mr Rich.  I also received a report from a treating psychologist, Mr Plua, who said that when you first saw him in April of this year, you displayed a sense of bewilderment, not knowing how to deal with the tragedy, which he said, seemed to have overtaken you.

28I have no doubt you are genuinely very remorseful for the fact you did not drive your car properly on this fateful day, and for having caused the death of
Mr Rich, which has led to endless grief and suffering for his family.  In sentencing for this crime, I must cancel your license to drive for a minimum of 18 months, and I have no doubt, this will affect your ability to work and this will impact your life.

29In my judgment, having regard to all of the circumstances of this collision and your low moral culpability for it, there is less need for the sentence I impose upon you, to reflect application of general deterrence.  In my judgment, because of your genuine remorse, your age and lack of prior convictions for driving, and your character and general antecedents and your excellent prospects for rehabilitation, the imposition of a community corrections order, with appropriate conditions will be a sentence which best achieves all of the purposes of sentencing in this exceptional case.

30A punitive aspect of order will be a condition that you perform unpaid community work.  To this end, I had you assessed as to suitability for the making of such an order.  The assessment has come back very positive, and you have been assessed as being at low risk of re-offending.

31On the charge of dangerous driving causing death, I make a community corrections order with conviction for a period of three years commencing this day. There will be a condition of the order, that you undertake 200 hours of unpaid community work. Section 89, sub-s.4 of the Sentencing Act requires that I must cancel any license held by you and disqualify you from holding a license for a minimum period of 18 months.  I have decided that your license should be cancelled, and you are disqualified from obtaining a license for a period of two years.

32Pursuant to s.6AAA of the Act, had it not been for your plea of guilty to the charge and the matter went to trial, after you pleading not guilty, I would have imposed a term of imprisonment for a period of two years, and I would have ordered that you serve a minimum of one year imprisonment before being eligible for parole.

33Are there any matters arising out of that?

34MS ELLIS:  As Your Honour pleases.  No, Your Honour.

35HIS HONOUR:  Mr Hone?

36MR HONE:  No, Your Honour.

37HIS HONOUR:  Could you come out of the Dock, please, Mr Cowburn.  Just come forward, Mr Cowburn.  Take a seat next to Mr Hone there at the Bar table, if you would.

38OFFENDER:  Thank you.

39HIS HONOUR:  Mr Hone, would you just take your client through that, please.

40MR HONE:  Yes, Your Honour.

41HIS HONOUR:  Make sure he understands what he is about to sign.

42MR HONE:  Yes, Your Honour.

43HIS HONOUR:  Now Mr Cowburn, you understand that first of all, you must report to Warragul Justice Centre in Queens Street Warragul within two clear working days.  Do you understand that?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  That is the first thing.  You must not commit any offence ‑ ‑ ‑

46OFFENDER:  Yes, Your Honour.

47HIS HONOUR: ‑ ‑ ‑ which is punishable by a term of imprisonment for the next three years; do you understand that?

48OFFENDER:  I do.

49HIS HONOUR:  You must attend for the unpaid community work.  Do you understand that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  Now, when I say that you must not commit any offence, that includes not driving.  If you are caught driving for the next two years, that is an offence punishable by a term of imprisonment, and if convicted, you will have breached this community corrections order.  Do you understand that?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  So, you must not drive.  Do you understand that?

54OFFENDER:  I do.

55HIS HONOUR:  Very well.  On the rising of the court, you are free to leave.  I will just adjourn the court for a moment whilst the Bar table is reassembled.

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