Director of Public Prosecutions v Cusbert
[2023] VCC 2110
•15 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN CUSBERT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2023 |
DATE OF SENTENCE: | 15 November 2023 |
CASE MAY BE CITED AS: | DPP v Cusbert |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2110 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Dangerous driving causing death – exceed PCA
Legislation Cited:
Cases Cited:DPP v Megarhiotis [2019] VCC 1296,
DPP v Bakar [2017] VCC 1167;
Papagelou v The Queen [2022] VSCA 53,
Koukoulis v The Queen [2020] VSCA 19,
Nicholson v The Queen [2018] VSCA 146,
DPP v Georgiou [2021] VCC 2036,
DPP v Flintrop [2020] VCC 601Sentence:22 months' imprisonment, 11 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
For the Accused | Mr C. Morgan | Daniel Taylor Lawyers |
HIS HONOUR:
1Nathan Cusbert, you have pleaded guilty to an offence of dangerous driving causing death which occurred on 28 December 2020. The maximum penalty for that offence is imprisonment for 10 years. You have also pleaded guilty to driving a motor vehicle with more than the prescribed concentration of alcohol present in your breath, being a concentration of between 0.058 per cent and 0.094 per cent, for which the maximum penalty is a fine of 20 penalty units.
2You have no prior convictions and no convictions for any offence since this offending.
3The prosecution tendered and relied upon a summary of prosecution opening dated 1 November 2023. I am going to go through it in a little detail in order to ensure that the basis for the sentence on the two charges is presented as part of these reasons.
4At the time of the offending you were aged 20 years. You are now aged 23. You were the holder of a probationary P2 licence.
5Your victim, Toby Mustard, was 21 years of age at the time of the offending and was a close friend of yours. Indeed, you lived in the same street in Delegate in New South Wales. You had been a friend of his for many years, were a close friend of his family and, at the time of the offending, you and he were working together for the same company.
6The offending involved driving your own vehicle, a 2000 Toyota Utility, and causing a collision in which your victim, Toby Mustard, was thrown from the vehicle and fatally crushed as your vehicle rolled over him.
7On the evening before the collision at about 5.46 pm, your victim attended a hotel in Delegate and purchased $63 worth of alcoholic beverages. It is to be inferred that what he purchased was a 30-pack of Great Northern Beer. It is also to be inferred that that beer was purchased for the purpose of you and he attending a party to celebrate the 21st birthday of a mutual friend in Bendoc in Victoria.
8It is not in dispute that you and your victim both consumed alcohol during the evening at the party.
9On 28 December 2020 between 12.15am and 12.30am or thereabouts, you left the party with your victim to return home to Delegate. You were driving your vehicle and your victim was seated in the front passenger seat, not wearing a seat belt. It is part of the allegation against you that that contributed to the dangerous circumstance in which you were driving at the time of the collision which led to your victim's death.
10On 28 December at about 12.40 am you were driving your vehicle along Gulf Road, Bendoc in a northerly direction. That road is a dirt road at that point; it runs mostly north-south approximately 2 and a half kilometres from the New South Wales/Victoria border.
11The road upon which you were travelling is wide enough for a single lane of traffic. There is no posted speed limit, so the default speed limit is 100 kilometres per hour.
12At the point of collision, your vehicle had negotiated a right-hand bend and was travelling on a straight section of road approaching a left-hand bend. It was at that point that you lost control of your vehicle, causing it to rotate anti-clockwise into a raised embankment.
13The victim, who was still at that time not wearing a seatbelt, was partially ejected from your vehicle through the open passenger-side window. Your vehicle rolled onto the passenger side and crushed the victim's head and upper body in-between the ground and the upturned vehicle. Sadly, your victim died at the scene.
14A post-mortem was later conducted. It concluded that the cause of death was 'craniofacial injuries sustained in a motor vehicle incident'.
15You were able to get out of your vehicle, having sustained only minor injuries. You were unable to find your own mobile phone. However, you found the mobile phone belonging to your victim and used that phone to call Triple 0. You were first connected with the New South Wales police force. You had a short conversation with the operator: you indicated that your Ute had tipped over and that you thought that your mate was dead.
16The phone was disconnected. Police attempted to contact that same phone again, unsuccessfully. But at 12.47 am an operator of the New South Wales Ambulance Services contacted your victim's phone. You answered the call. There was then a conversation between you and the operator of the Ambulance Service phone system which lasted about 38 minutes. During that conversation you made a number of comments: you identified your normal telephone number, you told the operator that your mate did not have a seatbelt on.
17You said 'I've had a couple of beers, I'm on my P plates, my green P plates. I'm going to be over the influence [sic]. I've killed me fuckin' mate, it's murder, I'm fucking done'.
18You went on to say: 'I swear I didn't mean to kill him… I just swerved for a wombat and then fuckin' it went into the ditch and it fuckin' rolled. Fuck'.
19You said: 'I swerved for a wombat. I fuckin' - hit it - well I didn't - I tried, swerved, but I hit it and it bounced up, hit the fuckin' kerb the, on the left and I tipped it'.
20The operator suggested to you that the event was an accident. Your response was to say: 'It doesn't seem like a fucking accident 'cause I've been fucking drinking. They'll fucking blame me for it'.
21Then you said: 'What fuckin' sucks is if I was sober, that same thing probably would have happened, fuckin' happened, but since I'm fuckin', had a fuckin', I've been, I've had fuckin' beer and, like, I'm drunk and shit tonight 'cause of those'.
22You went on to say: 'I'm not sure, like, fuckin' maybe 10, maybe', apparently indicating the number of alcoholic drinks that you had had during the course of the evening.
23You said that you had been drinking since 6 pm on the previous day ‘till now.’ You said that you had been drinking ‘Northern tinnies mid-strength Super Crisps’. You went on to say 'I was probably doing like 60 and - yeah I slowed down for the corners and shit, being sensible. 'Cause it's fucking night and there … was a fucking wombat and just fucking oh, I can't believe this'.
24At about four minutes past 1 am, two of the other guests from the party attended the collision scene. You indicated to one of them that you had seen a wombat and were trying to avoid it. You had a conversation with the other of the two persons that arrived at that scene and apparently indicated that you 'swerved to miss a kangaroo'.
25At 1.50 am the New South Wales Ambulance Service arrived and your victim was declared deceased. Members of Victoria Police attended and accompanied you to the Bega Hospital in New South Wales.
26You had a conversation with one of the police officers at the scene and you stated that you were 'Going home from a 21st party, coming along the track. A wombat shot down from the bank. Swerved a bit. Clipped the bank. Came back down. Slip. Landed like that. Tried to get the winch out. Found his phone'. It is to be inferred that those were simply notes rather than a true reflection of the precise way in which you expressed those facts.
27You were assessed at the Bega Hospital for a minor head injury.
28At 4.15 am you arrived at the Bega Hospital. A blood sample was taken at that time which was found to contain a quantity of 0.022 per cent grams per 100 millilitres of blood.
29The blood alcohol content of your blood at the time of the offending was estimated by a practitioner from the Victorian Institute of Forensic Medicine as follows: that your total body content of alcohol at the time of the collision was between 0.058 per cent and 0.094 per cent. Those estimates are the basis for the related summary offence to which you have pleaded guilty.
30It was the opinion of the doctor from the Victorian Institute of Forensic Medicine that an alcohol level within that range can affect reaction time, vigilance, concentration, motor coordination and visual function, that a person with an alcohol level in that range had an over five times higher probability of causing a collision as compared to a sober person.
31It was opined that your possible age‑related inexperience would have further compounded your ability to control a vehicle while intoxicated with that level of alcohol. It was further opined that the effect of alcohol in the range mentioned creates an appreciable risk that your driving would pose a risk to the public.
32Your vehicle was examined by a police mechanical investigator who concluded that the vehicle was raised by approximately 100 millimetres and had no front stabiliser bar fitted. The lack of stabiliser bar and the raised nature of the vehicle would have made the vehicle less stable when cornering compared to a standard unmodified vehicle, and there were no other faults, failures or conditions that could have contributed to the collision.
33The scene was examined by a forensic collision reconstructionist who formed the following opinion:
a. That your vehicle had travelled through a right-hand bend and was approaching a left-hand bend when the driver had input a left-hand steering and applied the emergency brakes. This caused the offender vehicle to oversteer to the left and commence rotating counter-clockwise about its vertical axis, while steering towards the left side of the road.
b. That at the time of the collision the offender vehicle commenced its spinning skid, it was travelling at a minimum of 60 kilometres per hour.
c. It was not possible to give an opinion as to why the driver had applied the left-hand steering input.
34You were interviewed by police on 7 January 2021 and made the following comments. You gave your mobile phone number and indicated that the phone was destroyed in the crash; that you called the ambulance using your victim's phone after the crash; that you had had the car for maybe five months; that you got your L plates at the age of 16 and your P plates at the age of 18 and that you had not had any mechanical problems in your vehicle since you had it.
35I note that dangerous driving causing death is a category 2 offence, and for that offence a court must impose a sentence of imprisonment not incorporating a community correction order unless certain conditions apply. It is apparent to me that none of those exceptions arising from the statutory framework in the Sentencing Act applies.
36Your victim's mother has provided a victim impact statement which was read to the court by the prosecutor. Unsurprisingly, you have left a void in your victim's family that cannot be filled. It has continued to cause a significant impact to your victim's family and to your victim's mother in particular. No doubt it will continue to do so. I am bound to take into account the effect of your conduct upon your victim's family.
37It is clear to me that you have shown remorse. I accept that this event will have been devastating for you with the loss of your very good friend and the rift no doubt that it has caused with your victim's family.
38Turning to matters personal to you: I was provided with a brief outline of submissions for the purpose of sentence indication, which was adopted for the purposes of the plea hearing (Exhibit 1).
39I was provided with Exhibit 2, which is a comparative analysis of cases for consideration on the plea and Exhibit 3, which is a report from psychologist Ms Gina Cidoni dated 7 October 2023. She speaks of your upbringing, your schooling and your attending high school at Bombala through to Year 12.
40Although you completed Year 12 it seems that you had lost motivation for academic education during your final year at school. However, it seems equally clear from the background that has been presented to me that you have been in work ever since you left school, and indeed were working with your victim at the time of the offending conduct and his death.
41You have tried your hand at different types of work, and it is to your credit that you have maintained a steady work record and have never received any Centrelink benefits.
42You have had various relationships with women but were not in a relationship at the time of the offending. The conclusion of some of those relationships led to emotional disturbance and feelings of depression. However, there seems to have been no formal diagnosis of mental impairment prior to the offending.
43However, since the death of your victim you have suffered very significant emotional distress. Ms Cidoni diagnosed Post Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder (MDD) with unresolved grief arising from your offending conduct, the consequent death of your friend and the impact upon his family.
44She says at paragraph 44 of her report:
‘It’s evident that the loss of Toby and the trauma of the motor vehicle accident in December 2020 have had a profound impact on Mr Cusbert. He expresses a deep sense of missing Toby and acknowledges a significant role that Toby and his family played in his upbringing.’
45She goes on under the heading 'Impact of imprisonment' to say at paragraph 79:
Imprisonment presents a complex and significant challenge for Mr Cusbert, given his diagnosed conditions and history.
46And at paragraph 81 she says:
‘The availability of mental health and addiction treatment in prison can vary, and if Mr Cusbert does not have regular access to care and therapy, it could hinder his progress and rehabilitation. His trauma and mental health issues, including symptoms of MDD and PTSD, make him highly susceptible to the challenges of prison life. The prison environment, characterised by inherent stressors and isolation, can significantly exacerbate these pre‑existing conditions, making it difficult for him to effectively manage stress and interpersonal conflicts.’
47She adds at paragraph 82:
‘Additionally, considering Mr Cusbert's history of suicidal ideation and thoughts about death, there is concern about self-harming or suicide attempts.’
48The essence of your counsel's submissions was to the effect that the circumstances of your offending demonstrate that the objective gravity and your moral culpability are to be regarded as very low. It was submitted that neither speed, fatigue nor mechanical defect played a role in the accident. That what you said at the time indicated that an emergency arose from a wombat appearing in front of your vehicle immediately prior to the collision. I note that the prosecution does not accept that assertion. However, in the end I am not sure how relevant it is. If you drive along country roads at night you can expect wildlife in the form of a wombat or a kangaroo or any such emergency to arise at any time. It seems to me that the real culpability here arises from your driving on the road having consumed alcohol to a level that impaired your capacity to control your vehicle generally, and particularly in the event of some emergency arising.
49That, together with the fact that you were travelling along a dirt road at night, meant that there were always risks arising from some unexpected event occurring and your capacity to deal with any such incident would have been significantly lowered as a result of the consumption of alcohol.
50It was urged upon me that a significant mitigating factor is that you were aged 20 at the time of the offending and are only 23 now. Your youth is undoubtedly a substantial factor and there are a number of authorities for the proposition that it is a significant sentencing factor that needs to be given proper weight in assessing moral culpability.
51That said, there are many young people on the road with motor vehicles and there is still a need to consider general deterrence aimed at that cohort. That too is a significant consideration.
52It is not an easy exercise to balance those factors, but youth seems to me to be an important factor in determining an appropriate sentence in your case, particularly for a young man who has an unblemished record both before this incident and since.
53There is no doubt that you are deeply remorseful. The deceased was your best friend, you had been through school together and remained friends after school, travelling to Queensland together looking for work. I was told that the deceased was like a brother and that you considered his father almost as if his father were your own. I accept that.
54Further, at the time of the accident both you and the deceased were working together in the forestry industry, and you feel both the responsibility for his death and his loss very deeply.
55It was further urged upon me that there had been a significant delay since your offending and that this matter has been hanging over your head. No doubt the prospect of a term of imprisonment at the end of it has been playing on your mind and contributing to the mental impairments that have been diagnosed by Ms Cidoni. I note that it is approaching three years since the offending.
56You were on bail from the time of your arrest. You complied with the conditions of bail and remained on bail until I revoked your bail at the time of the indication of your plea of guilty.
57In predicting your prospects of rehabilitation: you have a steady work history and a supportive family. At the time of your remand in custody you were living with your mother. Coupled with your clean record, both before and since this incident, it seems to me that your prospects of rehabilitation are excellent. It is unlikely you will offend again. Indeed, I suspect that this will have a very strong influence on the way you drive in the future and the way you handle alcohol.
58It was submitted that the circumstances of the accident involve a very low level of moral culpability and it was submitted that that might be considered a basis for applying one or more of the exceptions to the requirement that I impose a sentence of imprisonment without it being linked to a community correction order.
59It was submitted that based on that proposition a community correction order, whether on its own or in combination with a custodial sentence, would be within the range.
60I indicated at the sentence indication hearing where this was first presented that I was not persuaded that that was the case, because you had knowingly imbibed more alcohol than you should have, indeed you described yourself as being drunk. Although the estimate of your blood alcohol level at the time of the incident was not as high as many cases where alcohol has played a role in the commission of such offences, it was nevertheless significant, and it seems to me that that raises your moral culpability above the level presented by your counsel.
61The psychological report also points out the impact that your mental impairments will have during the sentence of imprisonment that I have already indicated must be imposed in this case. I regard that as enlivening the Verdins principle which is based on the proposition that it will make doing your time significantly harder than for a person who did not have those impairments.
62Your youth, the fact that this is your first time in custody, your good character and the ongoing effects of knowing that you have caused the death of your best friend and significant grief to his family will add to the burden of incarceration.
63It is necessary for me to sentence you adequately. I need also to denounce conduct of this kind, to give proper weight to the need for general deterrence, that is, deterring other people from engaging in dangerous driving in circumstances where there is a risk of injury or death to other people, and to the extent necessary - although I think it is not of particular importance in this case - deterring you from further conduct of this kind.
64However, particularly for a young person it is important to promote your rehabilitation to the extent that this is consistent with other sentencing considerations.
65It is always difficult to assess the precise level at which one gauges moral culpability, but it is a multi‑faceted question in this case. Your youth plays a role in that assessment and the fact that you were not engaging in deliberately dangerous conduct, or speeding, plays a role too. But imbibing alcohol to the level where you described yourself as being drunk must also be factored in. Therefore this is not at the low end of the scale of culpability - it is a little above that.
66This case is a tragedy and, as with all cases of this kind, the tragedy shines through to the perpetrator as well as to the family of the victim. I was very helpfully assisted by both counsel in this very difficult sentencing exercise by reference to a number of authorities. Those referred to specifically by Mr Morgan on your behalf were DPP v Megarhiotis [2019] VCC 1296, DPP v Bakar [2017] VCC 1167, Papagelou v The Queen [2022] VSCA 53 and Koukoulis v The Queen [2020] VSCA 19 which deals, amongst other things and specifically, with the punitive effect of the compulsory disqualification for people living in a rural location.
67Delegate is a relatively isolated rural location, which will make life without a driver's licence much more difficult for you at the conclusion of your sentence. It will amount to additional punishment over and above that kind of disqualification for somebody who is living in an urban environment.
68In addition, I have had regard to cases referred to by Mr Cookson on behalf of the prosecution. He refers to Papagelou and to Nicholson v The Queen [2018] VSCA 146; I was also referred to or have had recourse to other decisions of judges of this court, including DPP v Georgiou [2021] VCC 2036 and DPP v Flintrop [2020] VCC 601.
69All of those cases are helpful and assist in dealing with the difficult sentencing exercise with which I am faced. I think it is necessary I mention in particular the submission of Mr Cookson that it is necessary for me to look to an appropriate head sentence first of all, and to determine that based on all of the factors that I need to balance in order to arrive at a suitable sentence, but one which reflects the degree of culpability and the other mitigating factors in balance.
70He acknowledges the fact that youth is a not‑insignificant factor, as are, it seems to me, your youth, your remorse, your good character and the delay, coupled with the fact that you have pleaded guilty in circumstances where you knew that by doing so, you were throwing yourself on the mercy of the court.
71You have done so at a time when the COVID pandemic is still lingering and has impact upon the prison system. It may, if it has not already done so, lead to impositions of further stress upon persons incarcerated at the present time. It has not yet reached a point, I think, where the impact of the decision of Worboyes has been abandoned or dissipated to a point where it should be disregarded by this court. Therefore, your plea of guilty has significant merit in terms of saving this court from increasing the backlog of cases, saving your victim's family the agony of a jury trial and saving the public the cost of a trial. All of those are factors which need to be given proper weight and a significant reduction in a sentence that might otherwise have been appropriate.
72I have already mentioned the extra burden of the compulsory disqualification that I must impose for a person who lives in a rural area, particularly one as remote as the town of Delegate in southern New South Wales.
73Doing the best I can to give proper weight to all of those considerations I sentence you as follows.
74On the charge on the indictment of dangerous driving causing death you are convicted and sentenced to imprisonment for 22 months, and you are disqualified from holding a driver's licence for 18 months and that will run from today.
75For the related summary offence of driving with excess alcohol you are convicted and sentenced to a fine of $600 and disqualified from driving or holding a driver's licence for a period of six months, also from today.
76The total effective sentence of imprisonment is therefore 22 months.
77I fix a non-parole period of 11 months.
78I declare 27 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively.
79But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years and three months with a non-parole period of two years.
80Are there any other matters that I need to deal with, Mr Cookson?
81MR COOKSON: No, Your Honour.
82HIS HONOUR: Mr Morgan?
83MR MORGAN: Sorry, Your Honour, I might have missed it but the suspension on the summary offence, does that run from today?
84HIS HONOUR: From today, yes. They both run concurrently ‑ ‑ ‑
85MR MORGAN: Concurrently from today, sorry.
86HIS HONOUR: ‑ ‑ ‑ and concurrently with the term of imprisonment, at least partially, from today.
87MR MORGAN: Thank you, Your Honour.
88HIS HONOUR: Thank you.
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