Director of Public Prosecutions v Crawley

[2019] VCC 441

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02106

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM CRAWLEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 April 2019
CASE MAY BE CITED AS:	DPP v Crawley
MEDIUM NEUTRAL CITATION:	[2019] VCC 441

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr J. Williams	Victoria Legal Aid

HIS HONOUR: 

1Up until 2 November 2017 Melanie Rankin was a vibrant young woman.  On that day her life was catastrophically and permanently changed by reason of the serious brain injuries that you, Mr Crawley, caused to her by your thoughtless, irresponsible and dangerous driving.  I will outline shortly your driving behaviour and the surrounding context, as well as your own personal circumstances, but before I do I will speak more of what has been lost to Melanie Rankin and her close, loving family and friends.

2As I have just said when commencing these sentencing remarks, up until 2 November 2017 Melanie Rankin was a vibrant young woman.  She was much loved by her life partner, Mr Alex Pluke.  And she was an adoring mother to their then seven-month-old baby girl Willow.  She was a joy to her own parents and to her parents-in-law.  She was someone that everyone wanted to be with, such was her positive, indeed bubbly, personality.

3She had her life in front of her.  Also Melanie Rankin was a generous and caring young woman.  And so it was on 2 November 2017 with her care and compassion that she set out from her home in Ballarat to join with others in her extended family at Ocean Grove.  That was because that very day, 2 November 2017, she learnt that her beloved grandmother had passed away peacefully.  She wanted to be there for herself and for others in her family.

4She drove from Ballarat with Willow in the back seat of her car.  Her trip from Ballarat to Ocean Grove took her ultimately along the Mount Duneed Road.  Around 2 pm on that day, 2 November 2017, Ms Rankin was driving in the vicinity of the intersection of the Mount Duneed Road and Horseshoe Bend Road in Conewarre. 

5You, Mr Crawley, had on that day and the days leading up to 2 November 2017 been in arguments with your wife about her brother staying with you but not paying any money as rent.  You lived in Armstrong Creek, close to the Mount Duneed Road.  On the morning of 2 November 2017 you left your home angry and worked up.  You at some point got six cans of full strength beer.  You had in the days before smoked cannabis.  You drove to a small park on the Horseshoe Bend Road, where you drank the beer.  No full cans of beer were later found in your car.

6While at the park you continued to argue with your wife, exchanging heated text messages.  When you decided to leave that park area, you were plainly agitated.  You drove towards the intersection of Horseshoe Bend Road and the Mount Duneed Road.  Drivers like you, heading north on Horseshoe Bend Road towards Mount Duneed Road, face a stop sign at that intersection.  In addition, and as a consequence of seeing the police drive-through video, it shows that there are a number of rumble strips and warning signs along Horseshoe Bend Road as it approaches the intersection of the Mount Duneed Road.

7However, you drove in such a way as to be unable to stop safely at the intersection as you got there.  Your intention was to turn right onto the Mount Duneed Road and head east.  Because of the manner in which you were then driving, you entered the intersection without stopping safely.  As it turned out, Melanie Rankin was at the same time driving east along the Mount Duneed Road.  You narrowly missed hitting her at that point.  Cars heading west had to stop to avoid you. 

8Once you had completed your right-hand turn you were not brought to your senses by the near miss that you had just been involved in; rather, you accelerated so heavily that your car could not maintain proper traction and you fishtailed along Mount Duneed Road for a short distance.  Obviously you should have been appropriately cautious and restrained given what had just occurred at the intersection.  Also what must have been crystal clear to you was that the car Ms Rankin was driving was on the road in front of you.  You had just nearly hit her.

9She of course was driving appropriately at all times as she headed east along the Mount Duneed Road towards the Barwon Heads Road.  You were not driving appropriately at all.  The drive-through police video makes it clear that as you headed east you came over a slight rise and then - an initial rise and then another, and then down towards another smaller road that runs off the Mount Duneed Road called Charlemont Road.

10As you drove east over and then down the incline towards the area of Charlemont Road you were driving at a speed and doing so without taking care to avoid or properly pass Ms Rankin's car.  You collided with the rear of her car at a speed in excess of 100 kilometres an hour, which was the speed limit.  The force of the collision meant that Ms Rankin could not control her car and it rotated and moved further east and then into the trees on the left-hand verge of the road.  The impact with the trees was on the driver's side door.  Ms Rankin was trapped in the car with immediate and immense brain, spinal and pelvic injuries.  The child Willow was helpless but fortunately uninjured in the rear.

11The front of your car was damaged, including your front left tyre.  Your bumper bar also came off your car.  Despite this, and despite the serious collision that had just occurred caused by your dangerous driving and with the obvious fact that the other car was extensively damaged over in the trees, you in fact drove for another 270 metres, turning into Charlemont Road before stopping.  After about five to eight minutes you came back to the scene saying to others, who had themselves pulled up immediately to help, that you were the driver of the car that had hit Ms Rankin's car.

12There was testing of your blood alcohol content at the scene and at that time you were at .04, thus under the legal limit.  Later, within three hours, your blood alcohol reading was taken at the hospital and it was in excess of .08.  But as I will explain, it is not alleged that the alcohol in your blood system was particular of your dangerous driving, it is a separate related summary offence.

13What is said to be or constitute the dangerousness of your driving which caused the serious injury is your excessive speed and your failure to avoid Ms Rankin's car in coming up behind it.  You failed to avoid a car that was there to be seen.  You failed to simply overtake her on a two-way country road with no obvious impediment in any oncoming lane. 

14You claimed to the police that you came over the crest of the hill, slammed on your brakes, as did Ms Rankin, but you hit her.  The photographs, the reconstruction map and finally the drive-through video and the statements that surround it provided by the police show how the distance from the top of the rise on Mount Duneed Road to the point of the collision was sufficient for you to see the cars on the road in front of you.  There was plenty of time and roadway for you to just see and avoid Ms Rankin by slowing down to drive behind her or simply passing her, allowing both of you to proceed on without catastrophe.

15In my view on any assessment a reasonable driver taking proper car and driving at the 100 kilometre speed limit would easily have been able to see Ms Rankin's car for some time before the collision.  It was noted the precise speeds of both cars are not clear; what is well accepted is that you were exceeding the speed limit and thus driving in a dangerous manner.  And also you were not taking proper steps to simply avoid Ms Rankin's car.  In my view it is quite clear that reasonable and responsible driving by you at the time would have easily seen this tragedy avoided.

16Your speed and thoughtless driving behaviour before the collision up to the intersection of the Horseshoe Bend Road and Mount Duneed Road is revealing of your behaviour.  But more critically and pertinent to the charge is the way you drove down the Mount Duneed Road in the easterly direction in a way that meant you fell well below what is expected of drivers.  This was not some momentary inattention or a near-on unavoidable set of circumstances that led to a tragedy.  Your driving was appalling and what you caused by that behaviour was life changing for Melanie Rankin and those around her.  As I have emphasised, it was entirely avoidable.

17The assessment of the seriousness of your crime necessarily involves an analysis of your moral culpability together with a dispassionate assessment of the consequences in terms of what the serious injuries were and what the long-term future impacts are for the victim.  As to the initial question of your moral culpability I have reread the well-known authorities of Stephens v The Queen [2016] VSCA 121, the DPP v Neethling [2009] VSCA 116, the DPP v Oates [2007] VSCA 59, which refer to and adopt the criteria set out by the New South Wales Court of Criminal Appeal in TheQueen v Whyte [2002] NSWCCA 343.

18I have taken care not to make overly fine categorisations and to try to shoehorn this case into some particular point within a particular range, as that concept was explained by the Court of Appeal most recently in the DPP v Weybury [2018] VSCA 120. In the end on the basis of the prosecution case that was set out as to what establishes the dangerousness of this case, that is as set out in paragraph 3 of the opening, "that you were driving at an indeterminate speed over the 100 kilometres speed limit and caused the collision with the victim's vehicle."

19Had you been complying with the marked speed limit you would have observed the victim's vehicle and would have been able to respond appropriately either by braking or safely effecting a lane change.  Your driving in that way fell so far short of what is expected so as to avoid the catastrophe that occurred and as such in all the circumstances I am of the firm conclusion that your moral culpability was high. 

20In respect of the extent of the consequential serious injuries caused by your dangerous driving it is hard to conceive of more serious and dire injuries.  I do not wish to descend into the precise medical terms, it is not necessary and may obscure the practical aspects and implications of these very serious injuries.  What is plain is that Melanie Rankin sustained severe permanent brain injury.  She can no longer walk, talk or eat.  Her movements, if any, are ever so slight. 

21She is in the care of the Acquired Brain Injury Unit at Caulfield rehabilitation facility, which is part of the Alfred Hospital.  She requires intensive multidisciplinary acute and high-level nursing care around the clock.  Obviously over the 18 months since you caused her injuries she has moved through a long period of being in the intensive care unit at a hospital, then hospital wards and ultimately to the current facility, the acquired brain injury facility, where she is likely to remain. 

22There have been serious complications to her, with lung aspirations and serious infections that have seen her return to hospital for intense and emergency management of her condition.  She has a tracheotomy which assists her breathing which requires high-level nursing care.  Her life, once so brimming with potential and happiness, is now completely and diabolically compromised. 

23Her partner and family feel distraught as to what has happened to her.  This was expressed, and much more besides, in their heartfelt victim impact statements.  I need to refer to their words rather than use my own to describe how they feel.  I pause to say that although over the years I have read and heard too many victim impact statements arising from needless road trauma; however, in this case the feelings expressed and the video played were especially wrenching, such is the deep grief felt about what has happened to Melanie Rankin.  But that said, as I will set out at length, the impact upon the victim's family as to what has occurred, I have nonetheless been vigilant so as to not allow the devastation felt by her family to overwhelm other sentencing considerations. 

24Speaking of his deep attachment to Melanie, her partner Mr Alex Pluke wrote:

"Melanie and I are engaged.  If our world had gone as we planned we would now be married, husband and wife, and on our honeymoon in the Maldives.  We would be living in our house that we bought together in November 2016.  We would be a mum and dad to our gorgeous, sweetest absolute character of a daughter Willow, who was born in March 2017.  We would be planning our second child.  We would be talking about how much of a gap we should have between our first and second children.  We would be working our way towards Mel's aim of having a tribe of children.  We would be a family.  We would have our future together.  Willow would have her mummy home with her, her mum who loves her as only a mum can, completely and totally".

25As to the sheer panic and distress of discovering what had happened on the day as it unfolded, Mr Pluke wrote that he was heading home with his workmates and was about to salute, as it were, Melanie's grandmother, who had just passed away.  It was at that time that the police rang and said there had been the accident and his life partner was being air-lifted by helicopter to the Royal Melbourne Hospital and he should go there immediately.  Of course he then had to deal with the fact that his child was being taken to the Geelong Hospital on her own.

26He returned back to the Royal Melbourne Hospital and says:  "I have never been so scared or sick in my life".  He goes on to describe what unfolded, that he realised, "My normal, happy and safe world ended that day.  My life became a nightmare".  He writes towards the end of his victim impact statement:

"I have lost my girlfriend, my fiancée, my wife, my lover, my daughter's mother, the mother of my future tribe of children.  I have lost my best friend, the person I went everywhere with.  The person I had breakfast, lunch and dinner with, the person who was next to me when we went out to dinner with friends.  The person who was next to me at all the big social events.  Mel and I were inseparable.  We were always talking on the phone or texting each other.

"I have a wonderful support base through my family and friends, but part of me is gone.  I'm unable to return to work, even part time, as I am the full-time carer for Willow and need to be with Mel.  I don't have my soulmate.  I will never reach the stage of acceptance, but I hope that one day I will get off this hell of a rollercoaster".

27He also wrote about the difficulty of the first few weeks of doctors, nurses, intensive care units and realising that the news was not good and that they were looking at serious brain injury.  He spoke about how every day is a challenge, both mentally and physically.  He goes through stages of grief and anger and he has mental battles every day:

"Every day I look back and think that this time last year [and this is a year on from the accident] that Mel was with me.  She was healthy and vibrant and our world was as it should be".

28He also says that he visits Mel now in hospital.  She is unable to speak and her body is still broken.  He says:

"I know when Mel is upset and this both encourages me and destroys me.  It encourages me that she is showing her fighting spirit and I know she is still in there fighting to get well, but it destroys me that she knows she has a daughter that cannot hug, kiss or be a mum to her". 

29When she cries it unravels him emotionally and physically.

30Her own parents, Sandra Rankin spoke about sitting beside her in the ICU watching the brain pressure spike and not knowing how it was going to turn out:

"Then to be told that they had given all they had to keep her alive, no words can ever describe how this feels to a mother.  [She speaks of looking after Willow.]  It saddens [her] to know that this beautiful little girl is growing up without her mum.  Melanie is missing out seeing Willow crawl, walk, run and now trying to talk.  Mel was a perfect mum".

31It has great impact upon herself and her husband as they try and deal with the farm that they ran and coming to Melbourne to try and see their daughter.  She says,

"I can't look at any of the photos of Mel for a long time, it's too sad to see how she was and what she's like now".

32It has had an impact on the broader family.  Melanie's sister has not been able to remain in a job, her best friend had left her job, her cousin has delayed depression.  It has had severe effects on many people.  Melanie Rankin's father, if I might say, seems a man of few but powerful words.  When asked what the impact on him was he said:

"Sadness, profound sadness.  Sadness for the loss of the life Mel should have had, sadness every time [he visits] her, watching her lying on her back in a hospital bed.  Sandess for the moments of watching Willow growing and learning and processing so well and that Mel has missed out on being the one to help Willow grow.  Sandess for the ripple effects of how many of our friends and extended family have been profoundly affected".

33Her mother-in-law, very close to Mr Alex Pluke and to Melanie, spoke of the joy of being involved in preparing for the wedding that was coming and the joining of the two families.  On the day before the accident she looked after Willow while Mel finished some other things in the house and it was a great day, but what she stresses is the joy that was brought into the house and every time Mel came over she enjoyed her company very much.  And what now is the case is she sees her son,

"Who has lost his soulmate, his lover and best friend of ten years.  He lost the woman he as going to marry and I know that Mel's parents have lost their vibrant daughter with an ever-loving zest for life.  I know that Willow would never remember her mother as the beautiful, loving mother she was.  Life in a nanosecond had taken the most beautiful lady from all the people who loved her dearly".

34She speaks of the effect upon her, which is physical and mental.  She has lost a great deal of confidence, cannot go out.  It has put a strain on relationships.  She desperately misses her gorgeous Mel, who had been like a daughter to her for so long.

35So too her father-in-law speaks of the great loss.  There was in the year preceding such optimism about where his son, Mr Alex Pluke, and Melanie were heading, the future they had before them.  But once the phone call came about this avoidable catastrophe his life changed forever.  They now have to spend a great deal of time that they would otherwise have had in retirement looking after a young child and he watching his own wife's health deteriorate.  He misses the young, beautiful mother and daughter-in-law coming to the back door and immediately lighting up the room:

"What a combination Mel and Willow were becoming and that has gone".

36Her sister-in-law, Ms Ashleigh Brooker, spoke of how the family was always close but became even closer once Willow was born.  She speaks about the desperate times just after the accident, trying to provide support to Alex and others in the family:

"The past 12 months [she says] I felt heartache like no other, the pain I feel for the beautiful baby who will never get to know her mother the way we did.  My heart breaks for Alex, who lost his soulmate, sidekick, his No.1 fan".

37She speaks about how proud Mel would be of Alex with the job he is doing, but there is a great hole in their life.  She says:

"Although Mel is physically with us, the Mel we had in our lives prior to 2 November is gone forever and there's nothing we can do to bring her back".

38As I say, and I emphasise, these are wrenching matters, but nonetheless the devastation felt by Melanie Rankin's family will not overwhelm all other sentencing  considerations.

39As to your personal circumstances, Mr Crawley, you are now 46.  You were raised in Geelong with three siblings.  Your family life was difficult.  You have no contact or have had no contact with family members for over two decades.  You were the victim of significant physical and sexual abuse as a child at the hands of your father.  You spent much of your years as a teenager living with your grandparents.  You complained to the police of your father's conduct and a criminal investigation and trial followed, but he was acquitted of the offences in 2008.

40These events have understandably left a mark on you.  The expert psychologist Mr Cummins came to the conclusion that you have post-traumatic stress disorder and depression as a consequence of your experiences and abuse as a child.  After your schooling you worked first in travelling carnivals, but, following this, you got work in a bakery and developed a career as a baker.  You did well, but you suffered a serious workplace injury to your back in 2010 while you were working at a Safeway store in the bakery.

41By and large you have not returned to work since that injury because of it.  You have undergone a spinal fusion, but you continue to suffer significant pain.  You have had a range of pain medication and treatment that has culminated in a prescription for methadone.  You remain treated by that drug.  In fact you had taken your dose before the collision.

42The settlement of your workplace compensation claim, it seems, allowed you to purchase the house in Armstrong Creek.  You live there with your current wife, but at the time of the offending there was an intervention order against you due to family violence.  Despite all this and your current predicament, or perhaps because of your current predicament, your partner still supports you and that is important.  You have three adult children from a previous relationship, though it seems you do not have much to do with them. 

43Since your teens you have had a serious problem with alcohol abuse.  That said, you have in recent years moderated your drinking.  It is noted that you drank six cans of full strength beer before the collision at 2 o'clock in the afternoon on your own.  You also have used cannabis since your teenage years and you smoked cannabis in the days before the offending.  It was still in your system at the time.  You took up using methylamphetamine in your 40s and became addicted to that drug.  Thankfully after about a year you went into detoxification unit and ceased using that drug.

44You have criminal convictions and in fact you were on a community corrections order at the time of this offending, which is a concerning matter.  Your prior offending dates back to the late 1980s, but apart from driving offences those appearances up until 2007 are not directly relevant.  But your driving offences are a different matter; however, I emphasise that there has been no driving offences since 2010. 

45The driving offences are for driving while exceeding the blood alcohol level, which was at the time between .110 and .119 in March 1994.  On 11 March 2005 you were again before a magistrate for exceeding the prescribed blood alcohol level.  On that occasion your blood alcohol reading was .036, so at that time you were required to be a .00 blood alcohol level.  On 13 September 2009 you had your licence suspended for 12 months for driving at a speed that exceeded the speed limit by 45 kilometres or more.  Finally, in March 2010 you drove while suspended and were punished by further suspension of your licence.

46These drink-driving and the excessive speeding matter indicate that you have in the past shown criminal disregard for the safety of other road users.  This makes this offending more serious.  It makes specific deterrence, or deterrence to you, a relevant matter and raises some concerns as to the strength of your chances of rehabilitating; however, in attributing weight to these factors I do not ignore that these prior crimes are now dated. 

47As mentioned, you were on a community corrections order at the time of these offences.  You have committed family violence offences saw a community corrections order of 12 months imposed in February 2017.  You committed further family violence later in 2017 which breached the community corrections order.  On 1 September 2017 a magistrate reimposed the community corrections order.  The breaches of the criminal law and the breaches of the court orders in the months before this offending are, as I have said, concerning especially in the context that on the day in question you were arguing with your wife and agitated and angry when you drove off at excessive speed along the Mount Duneed Road, colliding with the car driven by Melanie Rankin, causing her serious injury.

48I have read the report of Mr Cummins and he reported that you expressed concern for the victim.  I have come the conclusion that you are remorseful and I factor that into the sentencing equation.  You pleaded guilty after a committal had been listed.  You did not in fact cross-examine any witness on that day.  You negotiated with the prosecution and you faced the charge of dangerous driving causing serious injury and two summary offences.  Your plea of guilty is important.  It saved the community resources of a trial but also the victim's family from the added trauma of a trial. 

49I have taken into account the maximum term for this offence, which is five years.  What needs to be said is the sentence I impose is not in any way the measure of Melanie Rankin's life or what has been taken from her or her family.  I must by law impose a sentence that is just and appropriate, taking into account many things that I have mentioned thus far, including the maximum term.

50What I also must take into account of course, the important purposes of imposing sentence.  Foremost in this regard is denunciation of this completely unnecessary and irresponsible act of dangerous driving causing serious injury to Melanie Rankin.  Given your high moral culpability and all the facts and circumstances of this dreadful driving, the community expects that my punishment will give practical expression to denunciation.  That practical expression will be in the form of years of incarceration.

51So too does the community expect that my sentence will act as a further deterrent to others who may be minded to drive dangerously and cause serious injury to other road users.  For years the authorities have embarked on campaigns to reduce road trauma.  The message must be re-emphasised by stern punishment involving years of gaol to those who commit crimes like yours.

52I do not lose sight of your rehabilitation.  You will need support when released to deal with your pre-existing and now added-to post-traumatic stress disorder and depression that arises from this offending.  Prison for the first time is always hard, but it is in my view the only just and appropriate sentence.  I take into account prison will be harder for you due to your ongoing back pain and to a lesser degree your mental health problems.  The summary crimes that you have committed and face will be met by fines.

53Your licence must be affected by a significant period of disqualification, given this offending and the summary matters and your past poor driving history, which all indicate a need for a period of disqualification.  That is disqualifying you from the right to drive on our roads with other road users.

54The minimum term that I impose is what I consider in all the circumstances justice requires.  I sentence you on the basis that you may have to do every day of the head sentence that I fix.  Whether and when you are released on parole is a matter for others.  Can you please stand, Mr Crawley.

55For committing the crime of dangerous driving causing serious injury to Melanie Rankin you are sentenced to three years and eight months.  I fix a minimum non-parole period of two years and eight months.  I will turn to the summary matters shortly.

56You have been in custody now for 50 days.  That figure having been reckoned I declare as part of the sentence that I have just imposed.  I ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already spent 50 days in prison. 

57In respect of the summary crimes of driving while being affected by drugs, you are convicted and fined $750.  For the summary offence of driving with a prescribed alcohol level in excess of where it should have been you are convicted and fined $1,500. 

58Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of four years and six months with a minimum term of three years and nine months. 

59In relation to your driver's licence, any licence you hold is cancelled and you are disqualified from driving for a period of four years.

60Are there any other matters?  You can be seated, Mr Crawley.

61MR WILLIAMS:  No, if Your Honour pleases.

62MR BROWN:  Just in relation to a forensic sample, Your Honour.

63HIS HONOUR:  There is a forensic sample sought.  That application having been made, I intend to grant it.  The reasons for that are the seriousness of the circumstances of the offending, your prior criminal matters, together with the fact that the granting of the order is in the public interest.  What you have to understand, Mr Crawley, is that when the authorities come to take a sample from him, which will be a scraping from your mouth so that your DNA can be extracted, that if you do not cooperate with them then those who come to get it are authorised to use reasonable force to enable the procedure to be conducted.  The way through it of course is just cooperate.

64You can be seated, Mr Crawley.  Is there anything further required?

65COUNSEL:  No, Your Honour.

66HIS HONOUR:  Thank you.  Mr Crawley can be taken downstairs.  I thank counsel again for their assistance throughout and today and for the dignity of all involved.  I will stand down until my next matter, Mr Fisher and counsel.

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