Director of Public Prosecutions v Dean
[2012] VCC 1358
•10 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00694
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER DEAN |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2012 | |
DATE OF SENTENCE: | 10 September 2012 | |
CASE MAY BE CITED AS: | DPP v Dean | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1358 | |
REASONS FOR SENTENCE
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Catchwords: sexual penetration of child under 16-culpable driving-negligently causing serious injury-plea of guilty-no criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R. Gibson for plea Ms S. Ching for sentence | OPP |
| For the Accused | Mr I. Crisp | X |
HER HONOUR:
1 Peter Dean, you have pleaded guilty to one charge of culpable driving, which has a maximum sentence of 20 years imprisonment, and five charges of negligently causing serious injury, an offence which has a maximum sentence of 10 years’ imprisonment. You have also pleaded guilty to one charge of sexual penetration of a child under 16, which has a maximum sentence of 10 years’ imprisonment.
The offences
2 I sentence you on the basis of the openings which were read by the prosecutor (Exhibits A and G). I will briefly summarise the circumstances.
3 Dealing with the first offence in time, some time in March 2011, you met a female who was then aged 13 years and 7 months. I will call her ML in an attempt to preserve her anonymity as required by law, but I mean her no disrespect by doing so. The Department of Human Services was aware of ML, and on 7 April, a DHS worker spoke to you about her, and warned you that it was illegal to have a sexual relationship with a 13 year old girl. She also advised you to contact police if ML contacted you or came to your house.
4 Despite this warning, when ML left her home without her parents’ knowledge and arrived at your house on 22 April, you let her stay the night and had sexual intercourse with her. I note that a condom was used. (Charge 1 on indictment C10295602)
5 Police arrived while ML was still at your house the next morning. The used condom was found, and you admitted to having sexual intercourse with ML.
6 Turning to the other offences, they all arise out of a collision of a car, driven by you, with a road guard rail and 2 trees in Werribee South. On 14 July 2011, you were out at night with friends, spending most of the time at a hotel. You were the driver for a number of people, and that number seemed to increase as the evening wore on. At the time of the collision, there were six passengers in your sedan. You were the only one wearing a seat belt.
7 Over the course of the evening, you were observed at various locations by various people to drink alcohol, including three cans and four glasses of Jim Beam and cola, and a pot of beer. You told an ambulance officer at the scene of the collision that you had 7 alcoholic drinks, and later you told police in an interview that you had five drinks at the hotel, the last being a beer at about 11pm. A preliminary breath test at the scene showed your blood alcohol reading immediately after the collision was .072%. The actual blood alcohol concentration at the time of the collision was closer to .09%.
8 When your group left the hotel, you initially intended to drive your passengers home in two lots, so that the car would not be overcrowded. Apparently, you felt you could not object when they all got into your car at once. Of course, you should not have been driving at all given the level of your consumption of alcohol.
9 You set off for Werribee South where a passenger, Ezekiel Stock, was to be the first person dropped off. You drove down Diggers Road at a fast speed. Mr Stock, who was very familiar with the road, and knew there was a bend ahead, thought you were travelling faster than normal and yelled at you to slow down. You later told police that you applied the brakes when you saw the warning sign for the bend, which shows an advisory speed of 35kph, and you also told police that you were driving at about 80kph.
10 However, an expert who reconstructed the scene of the collision formed the opinion that you were travelling at about 128kph when you applied the brakes and began skidding, 77 kph when your car hit the guard rail, 56 kph when the first tree was hit, and 41 kph when the second tree was hit by your car.
11 It was about 11.20pm. Laura Hallinan, aged 19, had been seated in the rear passenger seat behind you. She sustained fatal injuries. Laura was attended to by a police officer who arrived at the scene shortly after the collision. She was removed from the car to continue the attempt at medical intervention, but, tragically, she was pronounced dead at the scene. (Charge 1)
12 Craig Leatham, aged 26, had been sitting in the front passenger seat. He suffered bleeding around the brain, multiple facial fractures, fractures to his neck and thoracic vertebrae, ribs, and scapula, injury to the neck arteries on both sides, and an injury to his kidney. He was treated at the Alfred Hospital. (Charge 2)
13 Vivian Seja, aged 19, had been kneeling in the front passenger footwell, in front of and facing Mr Leatham. She was able to extricate herself from the wreckage. She suffered a nosebleed, tenderness on the left side of her ribcage and flank, and grazes on her right hip. She was treated at the Western General Hospital. (Charge 3)
14 Jodie Costello, aged 31, had been sitting on the knee of Ezekiel Stock, who had been sitting in the left rear passenger seat. Ms Costello was able to get out of the wreckage. She suffered abrasion to the head, tenderness on the shoulder, hand and knees with some grazes, reduced range of motion in an ankle, and haematoma on the lower jaw. She was treated at the Western General Hospital. (Charge 4)
15 Mr Stock, aged 19, was assisted from the wreckage by Ms Seja and Ms Costello. He suffered from a closed head injury, cardiac bruising, bruising to the lung, fractures to his thoracic vertebrae and ribs, laceration of his liver and associated haematoma, pain in his shoulder, chest, upper back, and upper abdomen, and a ligament tear. He was treated at the Alfred Hospital. (Charge 5)
16 Brendan Harris, aged 24, had been sitting in the middle of the rear seat, next to Laura. He suffered bruising and bleeding on the brain, fractures to the ribs, arm and leg, laceration of his liver and associated haematoma, laceration over his scapula, and post-traumatic amnesia. He was treated at the Royal Melbourne Hospital in the intensive care unit. (Charge 6)
17 You also received injuries and were later admitted to the Royal Melbourne Hospital. At the scene, you said to a police officer that you were the driver, that it was your fault, and that you had been drinking.
Impact on the victims
18 Mrs Hallinan provided a statement to me. She has suffered an enormous loss with the death of her daughter. She describes how close they were, and that they had become even closer after the death of her husband, Laura’s father, in 2008. Apart from the unimaginable emotional pain, Mrs Hallinan has suffered financially with time taken off work, and has left one job due to her distraction over the loss of her daughter. She continues to see a psychologist to help her cope with her emotions. There is nothing I can say or do that will ease her pain. All I can say is that I acknowledge her pain, and express the hope that time will diminish it a little.
19 The others involved in the collision did not provide statements about the impact on them. However, I have described their injuries, and it is clear that all suffered physically as a result of your actions that fateful night. I expect that each has also suffered psychologically from the knowledge of being in a fatal collision.
20 In respect of the sex offence against ML, she refused to make a statement about the events, including any impact on her. ML is obviously a vulnerable teenager. It is irrelevant whether she initiated the sexual intercourse, or consented to it[1]. This is because the law against sexual activity with children is designed to protect them from the consequences of their own inclinations, as well as protecting them from those who take advantage of such inclinations to engage in sexual activity with them. It is a law which reflects the community’s condemnation of such men[2]. The real impact of your act on ML may not be known for some time.
[1] Clarkson v R [2011] VSCA 159 at [36], [39]
[2] R v Williams (1976) CLR 248 as cited in Clarkson ibid at [27]
Basis for sentencing
21 Dealing first with the sex offence, it is made more serious by the following facts about which I am satisfied beyond reasonable doubt:
· you were warned not to allow ML continued contact with you, or to have her in your house, but went ahead anyway;
· you were twice her age; and
· you took advantage of her youth and vulnerability.
22 I accept that there was only one occasion on which you had sexual intercourse with ML, although you saw her a number of times.
23 I do not accept that you failed to understand the consequences of having sexual intercourse with a child, or that you lacked insight.
24 While the commission of a sex offence against a child is always serious, this is not the most serious example of this type of offence.
25 Turning to the culpable driving and serious injury charges, they are made more serious by these facts about which I am satisfied beyond reasonable doubt:
· your licence had been suspended and you had received a notice that the suspension commenced on the day of the collision;
· that suspension was for a speeding infringement ;
· you permitted the car to be overloaded with passengers; and
· you were warned by Mr Stock to slow down, but either did not do so, or were travelling too fast to do so, in time to take the bend in the road safely.
26 This is a serious example of this type of offending, although I accept that it is not the worst. It is a serious example because of the speed you were travelling in the circumstances, the number of people in the car, the amount of alcohol you had consumed, your deliberate consumption of that alcohol when you knew you were driving, and knew that you were the driver for a number of passengers, the number of victims, and the impact on those victims.
27 You have no criminal history, but you have two speeding infringements, one in 2006 for exceeding the speed limit by between 30 and 35 kph, and the one I earlier referred to, in 2011, for exceeding the speed limit by between 25 and 30 kph. Your licence was suspended on each occasion. Given the speed at which you were travelling on 14 July, it would seem that you have a tendency to travel well beyond the speed limit, and you would have known this when you set out to drive these young people home in an overloaded car, at night, while you were affected by alcohol.
Factors in mitigation and personal circumstances
28 As your counsel has pointed out, there are some mitigating factors which I must, and do, take into account.
29 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. By your plea, the community has been spared the time and cost of a trial, and your victims have been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
30 Next, I accept that you indicated your intention to plead guilty to all the offences at an early stage, while the cases were still in the Magistrates’ Court.
31 I also accept that your plea of guilty in each instance reflects the remorse you feel for all the offending. You have also expressed genuine remorse to your parents and friends, and to the clinical psychologist, Bernard Healey, whose reports I received (Exhibit 1). You wrote a letter to Mrs Hallinan and left it in her letterbox at the time of Laura’s funeral. A copy was provided to me (Exhibit 4). In it you express how sorry you are to have caused her such a loss.
32 Next, I take into account in your favour that you made admissions to the police as soon as they arrived at each of the incidents – to the police in your home, when they came looking for ML, and to the police who attended the scene of the collision.
33 I have been told something of your personal history. You are now aged 28, and you were aged 26 at the time of the sex offence, and 27 at the time of the collision. You are the only child of your parents, and grew up in a happy, stable household. After school, you obtained employment with a bearings company, and you have now worked there for 9 years, moving from the warehouse to the sales division. You were engaged, but that relationship ended. You are now in a new relationship, and that young woman began living with you in 2011. You have always enjoyed sport, either as a participant or spectator.
34 I heard evidence from your parents, aunt, uncle and a friend, and received references from your manager at work, and the President of the baseball club for which you played during your teenage years. All spoke of your good character before these offences, that you were well-liked, sociable, family-oriented, and always willing to help out. Importantly, no-one thought you were irresponsible when it came to drinking alcohol and driving. They also spoke of your remorse, and the changes that have come over you since the offending, particularly the collision, in that you have become withdrawn, and realise the devastation you have caused to the people involved and their families.
35 The psychologist who you have been seeing since these events, Mr Healey, also spoke of this in his reports. He detailed that you find it difficult to sleep, suffer nightmares about the collision, have lowered mood, and feelings of guilt, reproaching yourself for the errors in judgment you made.
36 Apart from your speeding infringements, you had not been in trouble with the police before the three month period in which these two serious criminal events occurred. You have not been in any trouble since July 2011.
37 I take into account that this is your first time in custody, and this will be difficult for you. Unfortunately, that is all too common for people sentenced for culpable driving, and for people sentenced for sex offences against children – in both types of offending, the offenders often have been of good character before the offences were committed. I also take into account that you are still a young man, who now has insight into his negligent and criminal behaviour.
Ancillary orders
38 Application has been made for the retention of an intimate forensic sample previously taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offence of sexual penetration of a child, that in all the circumstances, I order that sample be retained.
39 As a result of my sentence of you today for the charge of sexual penetration, you become a registrable sex offender. It is a class one offence. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the period of 15 years under section 34(1)(b)(i).
40 I will now have my associate hand to you a form which notifies you of your reporting obligations. Would you please sign where indicated to acknowledge that you have received this form?
Submissions
41 The prosecutor submitted that this was a serious example of the offence of culpable driving and serious injury offences. He further submitted that the sentence should involve some cumulation between the injury charges and the charge of culpable driving, as well as the sexual penetration offence. He put forward as an appropriate sentence a range of 7-9½ years' imprisonment with a minimum of 5-7 years.
42 Your counsel submitted that considering the factors in your favour, and that the two incidents occurred within a three month period when you had no previous criminal history, the minimum term could be reduced to allow the opportunity for you to demonstrate your rehabilitation in the community on your release. He conceded that there must be some cumulation between the offences, but urged that totality be considered.
Findings
43 Apart from the findings I have already made, I make the following findings:
· You are unlikely to re-offend;
· You do not have a history of alcohol abuse;
· You have good prospects for rehabilitation, given your lack of prior convictions, excellent work history, and loving support from your family and friends;
· Because of these factors, specific deterrence, which means that by my sentence I must seek to deter you from re-offending, is not as important as it might otherwise have been;
· General deterrence, which means that by my sentence, I must seek to deter others from offending in the same way, is of paramount importance in respect of both types of offending you have committed – men must be deterred from taking advantage of young and vulnerable children for sexual purposes, and people must be deterred from driving at excessive speeds, while being affected by alcohol, and with too many young people in their car;
· You were under the influence of alcohol which contributed to the offence of culpable driving, and so I will impose a period of disqualification, which will be for three years following your release from custody[3]; and
· I am satisfied that this will not reduce your prospects of rehabilitation as you have been able to continue working during the recent period of suspension as your parents have driven you to and from work.
[3] R v Caldwell (2004) 8 VR 1, [40] ; R v Williamson [2009] VSCA 21, [60]
44 I have read and considered the cases provided to me from the Court of Appeal. While they were helpful reminders of the current sentencing practices in respect of culpable driving and serious injury charges, I do not propose to analyse the similarities and differences with this case.
45 There will be partial cumulation between the injury charges and the charge of culpable driving, as well as the sexual penetration offence. That is because each victim must be recognised in the collision, and the sex offence, and the two criminal events involve separate and distinct types of serious offending. I have borne in mind the need to adhere to the totality principle.
Sentence
46 Stand up, please, Mr Dean.
47 You are convicted and sentenced as follows:
·Charge 1 on indictment C10295602 (sexual penetration) – 2 years imprisonment.
·Charge 1 (culpable driving) – 7 years imprisonment.
·Charge 2 (negligently causing serious injury) – 2 years 3 months imprisonment.
·Charge 3 (negligently causing serious injury) - 2 years 3 months imprisonment.
·Charge 4 (negligently causing serious injury) - 2 years 3 months imprisonment.
·Charge 5 (negligently causing serious injury) - 2 years 3 months imprisonment.
·Charge 6 (negligently causing serious injury) - 2 years 3 months imprisonment.
48 Charge 1 of 7 years imprisonment is the base sentence. I direct that four months of the sentences imposed on charges 2 – 6, and six months of the sentence imposed on charge 1 on indictment C10295602 are to be served cumulatively on the sentence imposed on charge 1 and on each other.
49 That results in a total effective sentence of 9 years 2 months’ imprisonment.
50 I direct that you serve a minimum term of 6 years 10 months before becoming eligible for parole. I have set this minimum term having regard to your previous good character, your good prospects of rehabilitation, and your relatively young age.
51 I declare that you have served 12 days in pre-sentence detention not including today, and that these are to be deducted administratively from your sentence.
52 I order that your licence be cancelled, and you are disqualified from driving for a period, ending three years after your release from custody.
53 If you had not pleaded guilty but had been found guilty after a trial on all these offences, the sentence I would have imposed for the sex offence is five years with a minimum of three years, and for the other offences, the total sentence I would have imposed is 14 years 6 months imprisonment with a minimum of 11 years 3 months.
54 I have made the ancillary orders and they can be handed down.
55 Yes, thank you. Mr Dean may be removed.
56 MR CRISP: If Your Honour pleases.
57 MS CHING: If Your Honour pleases.
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