Director of Public Prosecutions v Dixon

[2018] VCC 510

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01478

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY STEVEN DIXON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 April 2018
CASE MAY BE CITED AS:	DPP v Dixon
MEDIUM NEUTRAL CITATION:	[2018] VCC 510

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 P. Bourke
For the Accused	Ms J. Warren

HER HONOUR:

1Anthony Dixon, a jury has found you guilty of one charge of culpable driving.  You have pleaded guilty to the summary charges of failing to stop when directed by police, unlicensed driving, driving an unregistered vehicle, and driving an un-roadworthy vehicle.

2The maximum penalty for culpable driving causing death is 20 years' imprisonment.  The maximum penalty for failing to stop when directed by police is 15 penalty units, the maximum penalty for unlicensed driving is three months' imprisonment or five penalty units.  The maximum penalty for driving an unregistered vehicle is 50 penalty units, and the maximum penalty for driving an un-roadworthy vehicle is 20 penalty units.

3The facts underlying your offending are as follows.  On 6 January 2017, you were seen driving a grey Ford Telstar sedan along Browns-Scarsdale Road in Scarsdale by a witness who reported this activity to police on an unfounded suspicion that you were engaged in some sort of illegal enterprise.

4Eventually Acting Sergeant Anne Bone of the Smythesdale Police Station drove to the area where you were in a marked police car, taking up position behind you in Carlisle Street.  At the T-intersection of Carlisle Street and the Pitfield-Scarsdale Road you performed a U-turn and drove slowly past Sergeant Bone, who mouthed the words "Pull over" to you.  You did not respond to what she said.  You drove past her and performed another U-turn behind her. 

5At this point, Acting Sergeant Bone saw you had a female passenger, the deceased Bianca Lee Thompson, in the front passenger seat with her feet on the dashboard.  Acting Sergeant Bone then took up position behind you, and eventually followed you when you turned right into the Pitfield-Scarsdale Road.  As she travelled along behind you on this road, she noted that you were driving slowly within the speed limit, at one stage appearing to pull over at the left but then apparently deciding to go on.

6You failed to respond to her flashing lights, sirens and car horn, eventually crossing over the intersection of the Pitfield-Scarsdale Road with the Glenelg Highway, then turning right into the Old Glenelg Highway.  Acting Sergeant Bone followed you, but you seemed to pick up speed on the Old Glenelg Highway, and she decided not to continue following you.

7You were seen then by local youths at a swimming hole to drive at speed over a bridge and out of sight, and then according to two witnesses, your car was heard to stop.  After a short period of time, it started up again.  You continued to drive along the Old Glenelg Highway to its intersection with the
Glenelg Highway, where you failed to observe a give way sign, turning right into the path of an oncoming vehicle, a white Toyota Hilux towing a trailer driven by
Darcy Grundell.  Mr Grundell said you appeared to turn directly into his lane, which was the westbound lane, instead of the eastbound lane. 

8He then swerved left, and you apparently swerved right, the passenger sides of each car then colliding.  Your passenger, Bianca Thompson, was killed in the collision.

9A police collision reconstruction expert Dr Jenelle Mehegan estimated your car was travelling 50 km/h to 55km/h at the time of the collision.  The matter went to trial, where you pleaded guilty before the jury to a charge of dangerous driving causing death as an alternative to culpable driving, to which you pleaded not guilty.  Ultimately you were found guilty by the jury of culpable driving.

10You were acquitted of conduct endangering serious injury, which was laid in relation to your first crossing of the Glenelg Highway, and of dangerous or negligent driving whilst pursued by police, which related to your driving along the Glenelg Highway prior to the fatal collision.

11Inspection of the car revealed that both rear tyres were devoid of treads, and that the car was therefore un-roadworthy, but this was not considered to have contributed to the collision.  You were also unlicensed to drive a motor vehicle at the time.  Finally, the car was unregistered.  There was cannabis in your system detected, but this is not said to be able to be proven to have been part of the reason for the collision.

12You suffered serious injuries from the collision and were hospitalised.  You conducted a no-comment record of interview.  You told a paramedic who attended the scene that at the time of your driving leading to the fatal collision, you were arguing with Ms Thompson, and this had distracted you.

13Victim impact statements from Bianca Thompson's mother, brother and family friends were read to the court.  Their contents were deeply distressing, describing the terrible loss of Ms Thompson's young life (she was aged only 17), and resultant prolonged and ongoing devastating grief suffered by all.

14Ms Kathy Thompson, Bianca's mother, courageously read her statement to the court, describing the difficulties suffered by her daughter from an early age, leading to her removal to the Department of Health and Human Services' custody for a period of five years until her return home only two years before her untimely death.

15Ms Thompson described her daughter's joy at being returned home, stating:

"We had such hopes for Bianca, and now that hope is gone."

16Bianca's father also died three years ago.  Ms Thompson described herself as shattered by her daughter's death and the grief felt by her younger son Travis, stating:

"Bianca's death has caused me the most grief and sorrow.  She was a person full of love and light, she had so much love to give.  My heart is torn and I grieve unreservedly."

17Ms Thompson now receives psychological and medical treatment for anxiety and depression.  Travis Thompson also described his deep sorrow at the loss of his sister, its effects on his schooling, feelings of confusion and lack of purpose.  The court offers its sincere sympathy for the tragic loss suffered by Ms Thompson, Travis Thompson and Bianca Thompson's friends and family.

18I now turn to your personal circumstances.  You are 35 years of age, you were the third of five children born to your parents, a younger sister dying of cot death as an infant many years ago.  Your father ran a commercial cleaning business before his death several years ago, and your mother works as a hospital cleaner.

19Your eldest sister Cindy works in postnatal care, and has two young children.  Your brother David works in steel fabrication, and your younger brother is a painter. 

20You grew up in the Creswick area, completing Year 10 at Daylesford High School.  You described to psychologist Mr Mackinnon, who interviewed you twice, a long history of severe bullying at school and then in the workplace.  On leaving school, you attended Ballarat TAFE, undertaking short courses, then obtained work at a BP service station, where you remained for about five years.  You reported severe workplace bullying in those five years to Mr Mackinnon.

21In 1999, you met your first serious romantic partner, Amanda.  Your first child, a son, was stillborn at five months, the day after you had hit a kangaroo whilst driving with Amanda, and you continue to believe the stress of the accident caused this stillbirth. 

22In 2002, you left BP to work in an abattoir, and then in a series of varying factory jobs. 

23Your second child, a daughter Kaylee, now aged 15, was born in August 2004.  In mid-2005, when your daughter was about ten months old, you and Amanda separated, but have remained in cordial contact, and you have always played an active role in Kaylee's life, and always paid child support, even at times of unemployment.

24After the separation, you moved into a share house, and then began drinking heavily, eventually moving back to live with your parents and younger brother. 

25In early 2009, you obtained work at the paper mill in Ballarat, where you remained for three years.  In 2013, you entered into a second relationship with a woman named Justine, and after residing briefly with your parents, the two of you then together rented a house in North Creswick.  You undertook various jobs in this time, including cleaning at a local butcher.

26In 2014 you began what you thought would be a new career when you obtained employment as a cabinetmaker for Absolute Kitchens.  You worked there for 12 months.  However, you again were subjected to severe bullying in the workplace, putting you in such stress that you eventually developed a stomach ulcer. 

27You then experienced for the first time an extended period of unemployment, resulting in financial strain, which in turn stressed your relationship with Justine, to whom you were engaged at the time.  You began experiencing mental health difficulties, and were ultimately diagnosed with anxiety and depression, saw a psychologist, and were described antidepressants.

28Your relationship with Justine ended very suddenly in late 2015/early 2016 when she abruptly left you for another man.  At this stage, your life appeared to spiral downwards.  You tried to maintain the rental house with financial assistance from your mother and sister, but they were unable to keep this up.

29Around this time, you met Bianca Thompson, you formed a friendship, and ultimately a relationship developed.  In September/October 2016, you were ultimately evicted from your house.  You declined offers of assistance from your mother and effectively became homeless, living in your car, and this was your situation at the time of the collision. 

30You were drinking and regularly using cannabis during this time.  You have a number of prior convictions, many of them for driving offences.  In 2003 your licence was cancelled and you were disqualified from obtaining a further licence for a period of six months for driving with a blood alcohol content exceeding 0.05 per cent at a rate of between 0.05 and 0.069 per cent. 

31In May 2004, you were fined $400 for driving whilst disqualified, and driving an unregistered car.  In June 2005, you were fined $850, and your licence cancelled for 20 months for again driving whilst your blood alcohol content exceeded 0.05 per cent, your reading then being 0.103 per cent.

32Then in November 2005, you were fined and your licence cancelled for 12 months, again for driving whilst your blood alcohol content exceeded 0.05 per cent, this time with a reading of 0.067 per cent. 

33Your counsel pointed out that a number of your prior convictions coincided with the period following your separation from Amanda, when you spiralled into heavy drinking, and indeed you told your counsel Ms Warren that at the time you believed you were an alcoholic.

34You appeared in the Magistrates' Court again in 2007 for driving whilst disqualified and driving an unregistered vehicle, for which you were placed on a three-month suspended sentence and fines.  These fines were later converted to community work, but you failed to complete this and were breached in 2009.

35There was then a gap in your offending until August 2016, when you were placed on a community corrections order on charges of stalking, unlicensed driving, and driving an unregistered vehicle.  The stalking related to contact you were making in relation to your previous partner's new partner.

36Prior to the abrupt termination of your relationship with Justine, your father also died suddenly, five to six weeks after being diagnosed with cancer.  You were close to him, and this apparently added to your mental health difficulties.

37Your sister Cindy, who like the rest of your family remains supportive of you, described the 12 months after Justine's departure and leading up to this offending as the worst she had ever seen you endure.  You were eventually prescribed Valium by your GP for your continuing anxiety and depression.

38Psychologist Ian Mackinnon in his reports dated 8 May 2017 and 1 April 2018 diagnosed you as having suffered a long-term anxiety and depression mood disorder.  He believed the long-term bullying you endured both at school and work had led you to becoming a socially-isolated man with few, if any, friends.

39On both occasions he assessed you he described you as suffering from significant grief and remorse over your role in Bianca Thompson's death.

40In 2017, given your previous driving history, he believed you presented as a high risk of reoffending, but in 2018, revised that opinion.  He saw you at the Melbourne Remand Centre, where you have been residing since the jury verdict on 8 March 2018, and where you have been supported and visited by your family, Amanda and your daughter.

41Mr Mackinnon stated:

"He expressed determination and genuine distress over current matters, combined with his desire to do the right thing by the females in his family and the wider community, and these all raise Mr Dixon's chances of avoiding serious reoffending in the future".

42Mr Mackinnon also believed you were currently suffering an adjustment disorder, arising from Ms Thompson's death, the subsequent legal proceedings, and now imprisonment.

43Your counsel Ms Warren submitted that you had good prospects of rehabilitation given the great continuing support of your family.  Although you were on a community corrections order at the time of your offending, it contained conditions of work hours only, and not a mental health component that you probably required at the time.

44Following the accident you were flown to the Alfred Hospital and placed in an induced coma.  You suffered a broken wrist, facial and hand injuries, and a broken neck at C7.  You were in a halo brace for three months, and still suffer significant neck pain.

45You were bailed to your mother's house from hospital, and were remanded in custody as I have said following the jury's verdict on March 2018.  Ms Warren submitted I should find that you have genuine remorse for your offending, notwithstanding your plea of not guilty, in that you pleaded guilty to dangerous driving causing death, which was not a significant alternative in her submission to the charge of culpable driving, and receiving an acquittal on two other charges.

46She also relied on Mr Mackinnon's observations to that effect.  She submitted that the trial had been run on a narrow issue of perceived risk, and did not represented a shirking of responsibility by you for your role in Ms Thompson's death.  Much of the evidence, in particular expert evidence, was not resisted or disputed.  She submitted the continuing support of your family boded well for your prospects of rehabilitation, that family plans had been made for your eventual release and re-establishment in the community.

47Ms Warren pointed to your longstanding mental health difficulties, which included you being prescribed Seroquel after the collision.  She submitted that you needed assistance for this which could not be obtained in prison.  While she agreed that your prior criminal history was of relevance, she also submitted that the driving offences were mostly quite old, and arising from a particular situation in your life which no longer existed.

48It was also her submission that given the lack of features often seen in culpable driving cases, such as a great exceeding of the speed limit, use of drugs and alcohol affecting driving, and previous problematic driving making a collision inevitable, that I should regard your offending as falling at the lower end of the range of behaviours included in the offence, or seen in the offence of culpable driving by these courts.

49Ultimately the submission was that while a term of immediately-served imprisonment was inevitable, I should consider a substantial period of parole.

50The prosecution submitted that I should regard your offending as containing a high degree of moral culpability.  Mr Bourke for the prosecution pointed out that had you simply pulled over when ordered to by police, this tragedy may never have occurred.  He submitted that I should find that you continued to drive as you did on the Old Glenelg Highway because you were aware that you were being followed by police and wanted to remove yourself from the vicinity as quickly as possible.  This, he said, added to the moral culpability of your offending, and indeed he submitted that yours was a serious example of culpable driving.

51He also submitted that your prior convictions were highly relevant to the sentencing exercise before the courts.

52A number of authorities were tendered on the plea, all of which I have had regard to.  Inevitably however, the fact situations of each of those cases differ significantly in my view to the case before me.

53Your driving was not affected by drugs or alcohol, you were at no stage exceeding the speed limit.  Evidence of witnesses made it clear that at some point you stopped along the Old Glenelg Highway, notwithstanding what I can clearly find was a knowledge by you that you were being followed by police shortly prior to that.  The evidence was that your car was then heard to start up again.

54There were varying estimations of the time it took for you to restart your car, and then travel to the collision site, but it could not be deduced that you did so at a speed anywhere approximating the 100 km/h limit applicable to that stretch of road.  Your culpability, as I understand it, lay in your failure to slow down as you approached the intersection, that approach being bounded by trees, preventing any or any proper view of oncoming traffic on the Glenelg Highway. 

55You then failed to obey the give way sign, and turned right in a way which placed your car right in the path of an oncoming vehicle.  The jury has clearly found that your departure of care in the circumstances that you owed both to Ms Thompson and other users of the road was, in this case, so grave that it amounted to culpable driving, rather than dangerous driving causing death, to which as I have said you have pleaded guilty.

56There is in my view however insufficient evidence such that I could find that you were driving in order to remove yourself from the reach of police in the area,  particularly given, as I have said, that you had previously stopped on the Old Glenelg Road at a point soon after Acting Sergeant Bone abandoned her decision to follow you.

57It may have been that you were in fact arguing with Ms Thompson, and that you were distracted in the way that you told the paramedic at the scene.  It is difficult to say.  In the end, you have been convicted of the serious crime of culpable driving causing death.  As a result of your driving, Bianca Thompson's life has been tragically cut short.  The objective seriousness in any case of culpable driving is always high.  No matter the reason for such driving, where a death results moral culpability is usually high, and here your lack of attention was fatally gross in the circumstances. 

58It was not however exacerbated by illicit substance abuse affecting your capacity to drive, exceeding of the speed limit, or preceding appalling driving making a collision inevitable, which unfortunately is so often seen in these cases.  That, in my view, is as far as it goes.

59It is always very difficult in cases such as this, where a death has occurred, for a judge to talk about whether this sort of offending falls at the upper end or the lower range.  It should always be recognised that where there has been driving and a death has ensued, the case is always an objectively serious one for any court.

60In sentencing you, I accept that despite your plea of not guilty to culpable driving, you have genuine remorse for your offending.  This may be of little comfort to Bianca Thompson and her family in the circumstances.  Nevertheless, it is a finding that I am asked to make, and I do make it.

61I accept that you have strong family support.  Your prior driving criminal history does have some relevance, although I accept much of it is old, and related to your personal situation at the time.  Your counsel informed me that you have never sought again to obtain a licence since losing it in 2003, and I regard this as most reprehensible behaviour.

62That being said, it is my view however that it seems that your personal circumstances had some part to play in your criminal driving history in the past, and unfortunately it does seem that your personal circumstances also intruded into the way you drove on this occasion, in that, your troubled living conditions and your relationship with Bianca may well have contributed to the way you conducted yourself on the road on that fatal afternoon.

63As to your prospects of rehabilitation, I accept that you have the support of an insightful, law-abiding and caring family.  I also note however, from Mr Mackinnon's report, that despite your grief and remorse over your role in Bianca's death, you do continue to harbour some resentment at your conviction for culpable driving as opposed to dangerous driving causing death.  In a guarded sense, based pretty much on the support offered by your family and your own mental progress in the meantime since your arrest, I am prepared to accept you do have fairly favourable prospects of rehabilitation.  But my guardedness lies in the difficulties of your past and the life you were living at the time of the collision, and your unknown capacity to attend to your mental health difficulties and live the future in a way that is meaningful and constructive for you.

64I accept that the trial was run on a narrow issue and did not involve a denial of responsibility of your part in Bianca Thompson's death.  At the end of the day, you have however engaged in a serious offence involving the death of the adolescent Ms Thompson, and again, that is always the focus of any sentencing for offending of this kind.

65In taking into account all the factors I have outlined above, it is my view that the sentence I impose should indeed mark the seriousness of your offending, mark the tragic loss and death of Ms Thompson, although I make it clear no sentence imposed by a court in cases of this kind is designed to reflect the value of the life that has been lost.  The value of that life cannot be measured.  The loss is immeasurable, and again the sentence is not one which is in any way meant either to measure that loss, or the life of Ms Thompson. 

66I do regard as appropriate the submission by Ms Warren that whilst a term of imprisonment must be imposed, that there should be a reasonable period of parole, perhaps a larger period of parole than would ordinarily be the case, imposed in this particular case.

67I am anxious in saying this that the family not feel that the seriousness of this offending and the tragic loss of Bianca Thompson is in any way trivialised or not fully recognised.

68Taking into account all the factors that I have outlined, I therefore sentence you as follows.  Could you stand up please, sir?

69On the charge of culpable driving, you are sentenced to six years and ten months' imprisonment.  On the charge of unlicensed driving, you are sentenced to three months' imprisonment, and I order that two months of that sentence be served cumulatively to the sentence imposed in relation to the sentence for culpable driving.

70In relation to the charge of driving an unregistered vehicle, you are fined $400.  In relation to the charge of driving an un-roadworthy vehicle, a fine of $200 is imposed.  That gives a total effective sentence of seven years.  I order that you serve four years before becoming eligible for parole.

71What is the PSD please?

72MR BOURKE:  It was 42 days, Your Honour.  But Your Honour has also failed to deal with the fail to stop on police request.

73HER HONOUR:  I beg your pardon, I have too.  In relation to the charge of failing to stop when directed by police, you are fined $300.  Those fines can be converted into further time.  So the PSD was ‑ ‑ ‑

74MR BOURKE:  Forty-two.

75HER HONOUR:  I declare that 42 days of this sentence have been served by way of presentence detention.  In terms of your licence ‑ ‑ ‑

76MR BOURKE:  It is a mandatory minimum of two years.

77HER HONOUR:  I thought it was two and a half years, it is two years.

78MR BOURKE:  And there is an open discretion, Your Honour, as to when that period commences.  So it either commences today or any other day that Your Honour fixes.

79HER HONOUR:  All right.  Any licences are cancelled, not that there are any.  You are disqualified from obtaining a further licence for a period of five years, starting from today.  Thank you Mr Dixon, have a seat.  Thank you, anything else that I need to deal with?  Thank you, this matter is being placed on the portal, all right?  Thank you.  Yes.  I thank Ms Thompson and family and friends of the Thompsons for attending to hear this sentence.  Thank you very much, and thank you again, particularly Ms Thompson, for coming to court and reading out your victim impact statement, which was an incredibly difficult exercise, and the court is grateful to you for doing that.

80Thank you very much, we will stand down, thank you.

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