Director of Public Prosecutions v Dennis

[2016] VCC 435

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MATTHEW DENNIS

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	14 April 2016
CASE MAY BE CITED AS:	DPP v Dennis
MEDIUM NEUTRAL CITATION:	[2016] VCC 435

REASONS FOR SENTENCE
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Subject:
Catchwords: dangerous driving causing death
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy of counsel	Office of Public Prosecutions
For the Accused	Mr M. Vaccaro

HER HONOUR: 

1Andrew Matthew Dennis, you have pleaded guilty before me to one charge of dangerous driving causing death.  This charge arises out of your driving on 12 November 2014.  You drove your motor vehicle in a manner that was dangerous on that day, and in doing so you caused the death of Alain Guerin.

2The circumstances of your driving are set out in the prosecution opening which was made an exhibit on the plea.  On that day, almost 18 months ago now, you were working as a delivery driver and were driving a light truck on the Mt Buller Road near Mansfield.  The road was well maintained, visibility was good, and the weather was clear and dry.  You were driving behind two four-wheel drives who were travelling in convoy.  The driver of the first of the four-wheel drives noticed a cyclist in front of him.  The cyclist was Alain Guerin. 

3The driver decided to overtake him.  In doing so, he crossed over to the other side of the road to give the cyclist plenty of room.  The second four-wheel drive did the same.  Both of those drivers clearly saw the cyclist and one of them described him as being upright, riding well and positioned well to the left of the bitumen road. Tragically, it appears that you did not see the cyclist at all.  Your truck collided with the cyclist as you passed, causing fatal injuries to him. 

4Alain Guerin was a much loved and energetic husband, father and grandfather.  This is evident from the four victim impact statements provided to the court; one from his wife Coral, two others from two of his children, his son Laurent and his daughter Francoise, and the fourth from his daughter-in-law Kylie.  It is clear from the content of those statements that he was an extraordinary man.  He was a much loved family man who participated joyously in all that life had to offer, from skiing to cooking, to trekking and travelling.  He died whilst engaging in his great passion of cycling, a passion which he shared with the Mansfield cycling community.  His family is devastated and their grief can never be assuaged.  This court acknowledges in sentencing you today the great loss to this family and to the community which has been caused as a result of your offence.

5The maximum penalty for the offence of dangerous driving causing death is ten years' imprisonment.  In pleading guilty to this offence you publicly acknowledge that you drove on that day in a manner which was dangerous to the public having regard to all the circumstances of your driving, and you also publicly acknowledge that in doing so you caused the death of Alain.

6General deterrence must be given considerable weight in sentencing you today.  The court acknowledges the vulnerability of a person riding a pushbike on our roads, particularly on country roads where speed limits can be high and roads can be narrow.  This court must do what it can to signal to motorists that they have no greater rights to use the road than a cyclist and that motorists must drive with the welfare of all road users, including cyclists, at the forefront of their attention.  Cars and trucks can easily become lethal weapons, whether their drivers intend this to happen or not, if this principle is overlooked.

7It has often been said that a custodial sentence is usually the only appropriate sentence for an offence of this type.  The death of a human being, any human being, demands an offence such as this being treated with the utmost seriousness.  This is so particularly since the maximum penalty for dangerous driving causing death was increased from five years to ten years in 2008.  This is a reflection of the gravity with which parliament views this offending.

8Despite so many public warnings, people continue to die needlessly on our roads because of the inattention of otherwise responsible and law-abiding drivers.

9I accept in sentencing you today that the dangerousness of your driving does not concern speed, drugs, alcohol, fatigue or high risk behaviour, and the prosecution also concedes that this is the case. Mr Dennis, you have not set out to cause a death.  You have not deliberately or recklessly set upon a course of behaviour which led to this death.  The dangerousness for which I am to sentence you comprises momentary inattention to the road in front of you.

10The prosecution case is that the cyclist would have been visible to you for at least five seconds prior to the collision, a significant time span in the context of a driver's reaction time.  You did not see the cyclist at all.  The fact that you did not see him requires a conclusion that there was a significant lapse in your attention from the road in the seconds leading up to the collision.

11I accept that although the consequence of your inattention was the greatest imaginable, your offending itself, because of the lack of speed, drugs, alcohol, fatigue or high risk behaviour, is at the lower end of the scale for offences of this kind.

12On your plea hearing I received four documents.  The first was a report from Colleen Crutchfield.  She is a psychologist and she saw you once on 29 February 2016 for a period of three hours and for the purpose of providing a report to the court.  In her report she describes that since the collision you have suffered from post-traumatic stress disorder.  Some nights you wake screaming from nightmares, with flashbacks to the accident.  You were prescribed antidepressants but this has not stopped your nightmares.  When you are driving you now divert down another street in sheer terror whenever you see pushbikes. 

13You are now constantly worried about what will happen to your wife and son and about their general safety.  Sometimes you find yourself scratching at your skin until it is bleeding, without realising that this is what you are doing.  You have also developed obsessive compulsive symptoms.  These symptoms include washing the dishes multiple times and spraying areas of your house with ammonia and getting up multiple times during the night to ensure the doors of your house are locked. 

14Although no formal Verdins submission was made by your counsel, I record that I accept that these conditions which I have outlined will make imprisonment more burdensome for you than would otherwise have been had you not suffered in this way.

15Mr Dennis, you have an unremarkable family history, having been raised in a stable home together with your two brothers.  Family relationships are good.  After leaving school you obtained an apprenticeship as an automotive mechanic and you have worked in that field for eight or nine years before obtaining the job which you were undertaking at the time of this incident.  You had been with your employers for just one month at that time and following the incident and because of it you were dismissed from that employment.

16However, you have been successful in obtaining other employment and I received into evidence a character reference from the proprietor of your present employer, who describes you as being a very valuable part of his team.  He describes you as having a friendly disposition, being well liked and also being punctual, dedicated, loyal and honest and being willing to assist anyone in need.

17The report of Colleen Crutchfield indicates that you have applied to join the military as a diesel mechanic and that this application is on hold pending the resolution of this charge.

18As to your domestic life, you have been in a stable relationship for 18 years and you married your partner five years ago.  You have a stepdaughter and a son who suffers from a learning disability.  You and your wife both work, but you earn very little income overall and you pay a significant proportion of that income to obtain specialist help for your son's learning disability. You have never used illegal drugs and you rarely drink.  You have no history of mental problems prior to this incident and you appear to have always led a stable and law-abiding life in this community.

19Colleen Crutchfield administered certain psychometric tests.  She concluded from those tests that there was no evidence of antisocial attitudes or behaviours in you.  The tests did indicate that you were in a state of high distress and crisis.  It was she who suggested that you are suffering from post-traumatic stress disorder and obsessive compulsive disorder and she recommended that you obtain treatment for these conditions.  She also considered you to be at low risk for reoffending.

20I was also given a report from Richard Brown, who is also a psychologist.  You have seen him for three appointments since December of last year and have further appointments booked.  He described you as being profoundly affected by the incident, which occupies your mind for most of the day as you find yourself trying to make sense of what happened.  He indicates that your prognosis is poor because he says you are unlikely to ever recover from the symptoms and the degree of recovery you do achieve is likely to take years rather than months.

21I have also received a letter from your wife.  In that letter she describes the understandable stress and strain within your family as a result of the collision and the resulting charges. 

22Mr Dennis, you have pleaded guilty to this charge and that facts needs to be taken into account in your favour.  It is true that the plea was made on the day on which the trial was due to commence. However, I accept that there is still a very significant value to this plea in providing some closure to the family of the victim and also in avoiding the cost to the community and the trauma to the witnesses of the trial itself.

23I take this plea also as evidence of your remorse.  Your remorse was in fact evident from the apology which you gave at the plea hearing to the family.  You read that apology out in court.  It was an unstinting apology and I accept it as your heartfelt expression of regret.  I also accept that the reason for you continuing to defend this charge until the last moment was that you had not seen the cyclist at all and were unable to understand how the collision could have occurred.

24You have some prior convictions for traffic offences. I accept that these are generally to be described as on-the-spot fines, and that apart from one such fine in 2013 the other traffic offences occurred many years ago.  I do not treat them as relevant in my sentencing task today.

25I also take the view that specific deterrence is not required in this case; that is, the need to deter you from committing similar crimes in the future.  I am sure that the aftermath of this event is firmly imprinted on your mind and that the tragic lesson which you have learned from this collision will not be forgotten.

26I am thus left with a very difficult sentencing task.  On the one hand you have by your criminal act caused a catastrophe of immense proportions to the Guerin family.  It is a tragedy in the true sense of the word as it could have been so easily avoided had you not let your concentration stray in the seconds before the impact.  It is also a tragedy because, apart from this momentary lapse, you have led a blameless life in this community and you have a family who relies upon you both financially and emotionally and which is desperately awaiting the outcome of this sentencing today.

27You also have suffered, as has been outlined in the expert report submitted on your behalf as a result of this accident.  If you are imprisoned even for a short time then your life and the life of your family will change forever.

28Your counsel strongly submitted to me that I should impose a community corrections order rather than a term of imprisonment.  A community corrections order is a recent disposition available to the court in situations where a term of imprisonment might otherwise have been available.  I have an obligation to impose a sentence which is appropriate to the offending, and it is often said that a community corrections order is an available disposition in respect of offending of this type, at the lowest end of the scale, where the court may have in the past when it was available imposed a sentence of imprisonment and then wholly suspended that term of imprisonment.

29Indeed, I have been provided by the prosecutor with two County Court sentences in which a sentence of imprisonment was avoided and in one of them it was by way of imposition of a community corrections order, as has been the subject of submission by your counsel.

30Each case of dangerous driving causing death must be looked at individually.  Mr Dennis, having given this issue earnest consideration it is my view that the need for general deterrence requires that there be a sentence of actual imprisonment imposed upon you today.  The pain that this will undoubtedly cause to you and to those who love you must give way to the need to signal to the community that the horror of avoidable deaths on our roads caused by inattentive drivers must cease.

31Given the circumstances of the accident as I have described them, I do not consider that a lengthy period of imprisonment is required.  I propose to sentence you to a period of six months' actual imprisonment and then to release you on a community corrections order for a period of four years.

32This will serve the twin purposes of demonstrating to the community that all road users must be highly vigilant to avoid death or injury on our roads, as well as providing a mechanism for you to give some service back to the community by way of significant community work, coupled with a condition which will address those mental issues dealt with in the expert's report and assist to effect your rehabilitation in the community.

33Mr Dennis, can you stand up please.  Andrew Matthew Dennis, on the charge of dangerous driving causing death you are convicted and sentenced to be imprisoned for six months.  In addition, I propose to order that you undergo a community corrections order for a period of four years.  As well as the usual conditions of that community corrections order, I will impose a condition that you undertake 400 hours of community service over that four years and a condition that you be assessed for treatment and rehabilitation.  Mr Dennis, I can only impose that order if you agree to undertake it.  What I will do is to have my associate give to your counsel a copy of the proposed order and he can explain the terms to you.  If you agree with those terms then you will need to sign it.

34Just before that happens, I indicate as I am required to do that I will cancel your licence and order that you be disqualified from driving for 18 months.

35There is a summary charge before me as well, a charge of using a mobile phone while driving.  If you were dealt with by way of an on-the-spot fine for this offence - as I understand it the on-the-spot fine is $455 - I propose to fine you only that amount so you will be fined $455 for that summary charge.

36The prosecutor made application for a forensic sample to be taken from you.  In my opinion you are of no future risk to the community and the taking of a forensic sample is not justified in this case. Therefore the application is refused.

37Mr Dennis, I am required to tell you what sentence I would have imposed had you not pleaded guilty. Pursuant to s.6AAA of the Sentencing Act I tell you that, taking into account the matters I have referred to as relevant to the weight to be given to your plea, but for your guilty plea the sentence I would have imposed would have been a period of three years' actual imprisonment with a non-parole period of two years' imprisonment.

38I will now ask my associate to give the document to Mr Vaccaro who can explain it to Mr Dennis.

39MR CORDY:  Can I just confirm, Your Honour, that in respect of the summary charge that fine is with conviction?

40HER HONOUR:  Yes, with conviction.

41MR CORDY:  Thank you, Your Honour.

42HER HONOUR:  Mr Dennis, you have signed the conditions of the community corrections order and I have signed it as well.  Those terms have been explained to you by Mr Vaccaro.  The community corrections order will commence when you are released from prison.  You must comply with the terms of the community corrections order.  If you do not then you may come back before me and I will need to resentence you for the crime which you have committed today.  Do you understand that?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  Thank you.  Are there any other matters?

45COUNSEL:  No, Your Honour.

46HER HONOUR:  Thank you.  The formal order will be printed out hopefully within a few minutes and I will sign it and you will be free to go.  Thank you, remove the prisoner.

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