Director of Public Prosecutions v Dodt
[2022] VCC 1449
•31 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-20-00978
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEVILLE DODT |
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JUDGE: | HIS HONOUR JUDGE S JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2022 | |
DATE OF SENTENCE: | 31 August 2022 | |
CASE MAY BE CITED AS: | DPP v Dodt | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1449 | |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Dangerous driving causing death – Plea of guilty - Delay
Legislation Cited: Sentencing Act 1991
Sentence: 30-month CCO with a $15,000 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Rochford QC with Ms S Locke | Office of Public Prosecutions |
| For the Accused | Mr L Gwynn | Armstrong Legal |
HIS HONOUR:
1 Neville Dodt, you have pleaded guilty in this court to a charge of dangerous driving causing death, which is a Level 5 offence, the maximum penalty for this offence is 10 years imprisonment, with a maximum fine applicable of 1200 penalty units.
Circumstances of Offending
2 Turning to the circumstances of your offending, there is a detailed outline of the circumstances of the offence in Exhibit A which is the summary of prosecution opening. I am not going to repeat that detail, and Exhibit A forms part of these reason for sentence.
3 In brief terms, at 3.25 am on 13 October 2019, as you and the deceased man, Mr Constable were driving north east on the Wimmera Highway near Marong, the truck driven by you left the highway and collided with a tree.
4 The road was straight and the vehicle travelled without veering and braking for approximately 75 metres straight into the tree. You have no recollection of the collision or the lead up to it. The deceased, Mr Ricky Constable sustained traumatic injuries and died at the scene. You received serious injuries yourself as a result of the impact.
5 You and the deceased were driving from Taromeo, Queensland to Casterton in this state to pick up an excavator. You picked up the excavator and were on your return journey when the collision occurred. Between 4.00 pm on 11 October and 3.25 am on 13 October, you and the deceased had travelled 2349 kilometres in approximately 35 and a half hours. You and Mr Constable shared the driving. It is unknown how that was divided.
6 What is known is that there was no opportunity for you to get a proper sleep or what has been referred to by the prosecution, Mr Rochford QC as a proper sleep. You were fatigued, the overwhelming inference from the sequence of events, in particular, as found by the reconstruction and the fact that no driving inputs for a 75 metre period, is that you fell asleep due to fatigue. You knew you were fatigued and you said at the scene, 'I was tired, I was going to get him to drive'.
7 Objectively, the distance travelled without a break or proper opportunity for sleep indicates it became a very dangerous exercise.
Objective Gravity of Offending
8 Turning to the gravity of your offending. Those objective facts that I have just referred to, the distance travelled over that period of time without break or proper opportunity for sleep point to the gravity of the offending and the danger posed. Other features are that you were transporting heavy machinery, you were driving on unfamiliar country roads in the early hours of the morning. You were drinking coffee in the lead up to the collision, indicating you had awareness of fatigue and your admission at the scene supports your awareness of fatigue.
9 You were doing most of the driving around the time of the collision. Those factors that were known to you require more focus and attention whilst driving and ought to have led you to conclude that the only reasonable thing to do in the circumstance was to stop and get rest.
10 Those are the grave aspects of the offending because, of course, dangerous driving in those circumstances carries with it the risk of a catastrophic event, such as what occurred. The dangerous driving falls at a particular level of the range of objective gravity and indeed moral culpability for this type of offence. The prosecution are unable to say the degree or extent of fatigue that you were suffering. It is also not possible to come to a concrete review as to the degree of your awareness of your fatigue and its impacts.
11 You had a full and current Queensland driver licence at the time of the offence. There was no evidence of speed, drugs or alcohol, no evidence of lairising or risk taking in the driving. There were no mechanical faults and it was a safe truck you were driving. No indication of erratic, aggressive driving, competitive driving or showing off. No evidence of any specific warning that you were becoming so fatigued as you might lose attention. Other than the objective facts. You remained at the scene and were cooperative with the authorities. I accept that you have decades of driving without incident, including long interstate trips.
12 All of these matters in combination lead me to the conclusion that your example of dangerous driving causing death falls towards the lower end of the range.
Victim Impact Statements
13 I received five victim impact statements. They were all moving and spoke eloquently of the devastating impacts of losing a father, a brother, a partner, a loved one. That sort of loss is beyond words and certainly beyond the scope of any sentencing remarks to adequately reflect.
14 Sheldyn Devecchi read her victim impact statement in open court which obviously was not an easy thing to do. It was very moving. The loss of her father has had a severe impact upon her. Your dangerous driving due to fatigue and your awareness of the fatigue has caused that devastating loss to her and its serious impacts.
15 Giovani Devecchi has also lost a father due to your criminal conduct. He has also suffered the devastating impacts that cannot be overstated, significant impact. So too have Jean Constable, Denise Felhaber and Simone Grimshaw. I take these serious impacts into account.
Personal Circumstances
16 In relation to your personal circumstances, you are now 62 years of age, and were 59 at the time of the commission of the offence. It is not the sort of matter where one needs to go through chronological detail as to your early life and your trajectory through life. It suffices to say that you are a father of five and have been married for 35 plus years. You and your wife have been together for more than 40 years. And as I mentioned, have five children of whom you are all proud.
17 You are a panel beater, a painter and also have some expertise in relation to air conditioning. As you stated, you own a hobby farm, you enjoy writing comedy. You have been heavily involved in the local community in positive ways for many years and there were a large number of personal references tendered on your behalf, the contents of which I accept are testament to your character, your contribution to the community, your honesty and your remorse.
18 You operate a panel beating business and I was told have done so for some 40 years. You employ seven staff. Your wife has been working in the business as times have become very difficult, understandably, since October 2019.
19 You suffered serious injuries in the collision, requiring hospitalisation. These include an injury to your cervical spine for which you have been advised to have surgery but you have not yet done so due to concerns of the risks. You also suffered injuries to your pancreas, concussion, forehead laceration, removal of your gall bladder. The pancreatic injury is related to your current diabetes, I was told. You have ongoing facial pain arising from the impacts of the collision which has served as a reminder, you make no complaint about it, but it has served as a reminder of the collision and those injuries in combination do constitute a form of extra-curial punishment.
20 There has also been significant psychological sequalae to your involvement in the collision, the obvious trauma associated with that, you have flashbacks in relation to the immediate aftermath but also it is acknowledged that you lost a dear friend as a result of your conduct. That has weighed heavily upon you and will continue to weigh heavily upon you for the rest of your life. I understand you spoke at Mr Constable's funeral and attended the wake.
Matters in Mitigation
Plea of Guilty
21 Turning to matters in mitigation, the plea of guilty is a significant one. Significant for all the reasons relied upon by Mr Gwynn and conceded by the prosecution. There was a trailable issue in this case. Cases involving fatigue and the circumstances of this case, on the evidence that is available in this case are far from foregone conclusions. Your admission by way of your plea does close a gap that would otherwise have had to have been proven by inference in prosecution case.
22 In the context of the COVID-19 pandemic, where trial lists are in a state of crisis, there is a significant utilitarian value to any plea that results in a trial not taking place that otherwise would have taken place. And I consider that that value is only increased in a cases such as yours where there is a trailable issue. Your acceptance of responsibility not only carries that utilitarian value it also saves further stress and trauma on the family of Mr Constable. And what I also do accept is, your plea is reflective of your remorse.
Remorse
23 Related to remorse and contrition and perhaps overlapping with what I have referred in relation to extra-curial punishment is the psychological effects that you have experienced. Again, they are a natural human response to having caused the death of your dear friend by your dangerous driving and having the trauma of those flashbacks associated with it, the loss of your standing in the community, the strain of the proceedings hanging over your head, all of these matters have led to your insomnia, depression, anxiety, requiring professional treatment and these are matters that I take into account in relation to your response and contrition. But also in relation to extra-curial punishment.
24 And also in relation, in a Verdins sense, as to the appropriate sentence. This is a case where those factors, due to the fact that they would increase the burden of imprisonment, are appropriate factors to consider in determining the type of sentence that is appropriate.
Delay
25 Delay is a matter that has mitigatory weight in your case and really it is the effects of delay. During the period of delay, you have been on bail, you have suffered those physical and psychological matters I have referred to but also the loss of standing in the community, you have had to try and continue on your business, you have attended court, there has been a lot of cost involved. But throughout all those matters, you have had an unblemished record whilst on bail, but you have also significantly had a very serious criminal offence hanging over your head and the prospect of serving gaol term in this jurisdiction. And I take that into account.
Prior good character
26 I accept that you have been otherwise of good character. There is a criminal history, it is common ground that that is not a matter that I really need to spend much time considering, I have considered all of the reference material and those matters operate in your favour. You have always worked hard, you have been a business owner who has employed other people, you have contributed to the community and you have carried the business through hard times.
Other matters in mitigation
27
I have to consider the impacts initially of the period of custody and also, more recently in terms of the Community Corrections Order, I have considered that work history and the operation of your business, the impracticality of that business continuing if you are required to be in this jurisdiction for a lengthy period including a period in custody or a period performing
Community Corrections Order. I have had to consider that matter carefully.
28 You have strong support from your family and your friendship group. Linked to your experience of loss of standing in the community, I have also been advised and accept, as the prosecution accept, that you have been the recipient as what has been described as hate mail. And I accept that that has had an impact upon you.
Section 5(2H) of the Sentencing Act 1991
29
All of those matters in combination and together with the prosecution's concession lead me to conclude that substantial and compelling reasons, exceptional and rare, are present in your case due to that combination and thus, by operation of s 5(2H)(e) of the Sentencing Act1991 (the Act), you are exempt from the operation of s 5(2H) and that leaves open to me the sentencing option of the imposition of a non-custodial sentence. That is what I indicated I would do at the sentencing indication hearing where all of the matters in mitigation were raised. I indicated at the end of that hearing that a
Community Corrections Order would be the sentence I impose.
30 That left the question of what form that should take. In arriving at that view under s 5(2H), I had to consider not just the matters in mitigation, but I was able to have regard to, but also have regard to what I have referred to already as the lower level of offending and low moral culpability notwithstanding the high risk associated with driving while fatigued. And the cumulative impact of all of those circumstances justify a departure from a custodial sentence. And I undertook that exercise in arriving at that view, keeping in mind that general deterrence remain of primary importance in a case such as this.
31 Normally, prison sentences flow from a plea to this offence. But as I have said, and as I have said prior to today, I am persuaded that your circumstances can be classified as substantial and compelling circumstances that are exceptional and rare and accordingly, a prison sentence will not be imposed.
Other Sentencing Considerations
32
A Community Corrections Order will be imposed and I have had to give careful consideration to the terms of that order due to the fact that you are domiciled in Queensland, you run a business in Queensland, you are 62 years of age with a long marriage in Queensland, it is not so easy for you to remove yourself from there and abide by what would be the ordinary, normal terms of a
Community Corrections Order for a Victorian person who committed an offence such as this and avoided gaol.
33 General deterrence is still an important sentencing factor so the sentence I impose has to reflect general deterrence, it has to deter others. Specific deterrence, in your case, for all the matters raised by Mr Gwynn is not at the forefront of my mind but general deterrence is. Whilst your own moral culpability is not at a high level given my findings and the prosecution concessions and the objective facts, driving whilst fatigued in the way you did is a high risk and dangerous exercise. And the consequences, as we have seen, can be catastrophic. And so such conduct must be denounced and others must be deterred by it.
34 The facts of your case, due to the travel that you did and the commission of the offence occurred in the course of that travel, those facts leave you in a situation where you cannot operate the business and reside where you are normally domiciled and have been for decades as well as perform the requirements of the Community Corrections Order that involves in particular, unpaid community work. The imposition of unpaid community work hours in all likelihood would have the result in you having to relocate at least for some portion of the time to this jurisdiction. Now, that fact carries with it a degree of punishment over and above the imposition of work hours.
35 It was raised on the plea when these matters were being traversed, by Mr Gwynn, that I could delay the imposition of such an order for three months, delay the commencement of it, that is. Then attempts could be made to transfer or somehow navigate the order so as it would not have that extra punitive effect. Transferring the order is something that would have my full support. Another solution is to commute intermittently if Corrections could accommodate such an arrangement. That would also have my support.
36 Your case has required special consideration and from this point forward, it will require special consideration by Corrections because in order to satisfy and appropriately reflect all the sentencing factors that I must have regard to, I have concluded that I must impose modest work hours in addition to a substantial fine on a Community Corrections Order.
37 You are assessed as unsuitable for this reason, that is the geographical reason. But I have concluded that in all the circumstances of the case, I must impose a Community Corrections Order.
38 Sentence
39 I sentence you as follows, Mr Dodt, and you can remain seated:
40 On the charge of dangerous driving causing death, you are convicted and sentenced to a Community Corrections Order of two and a half years duration and fined $15,000.
41 The Community Corrections Order is to commence three months from today's date and to run for two and a half years.
42 You are subject to all the core conditions of a Community Corrections Order which are set out in s 45 of the Act, for the most part they cover matters such as not committing further offences and due to my findings in relation to your prospects of rehabilitation, I do not expect that will be a condition difficult for you to comply with.
43
One of the core conditions is that you reside in Victoria unless given permission to reside elsewhere, so that would have to be a matter that is negotiated between now and the commencement of the
Community Corrections Order and for my part, I will state in these reasons for sentence, that I would urge Corrections to consider either providing permission for Mr Dodt to reside in Queensland and perform his Community Corrections Order from there or for it to be transferred.
44 In addition to the core conditions, I impose 50 hours of unpaid community work.
45 I am going to also order a bond condition pursuant to s 48JA of the Act, that is a bond of $7,500. And that is a bond that is put up for the duration of the Order and the subject of forfeiture, as I understand it, if there is non-compliance.
46 Pursuant to s 6AAA, I indicate that but for your plea, I would have sentenced you to a sentence of two years with a 12-month non-parole period. I have already indicated I make the forfeiture order sought as amended.
47 I will just say once more that I strongly recommend that the Office of Corrections explore every opportunity to supervise the Community Corrections Order and provide work without Mr Dodt having to reside in Victoria, or preferably even without him having to travel to Victoria if work can be done remotely, as it was done throughout the pandemic, as Mr Gwynn pointed out.
48 My experience, and there has been plenty of it over the last two and a half years, has been an experience of dealing with Corrections Orders through judicial monitoring and also variations of Corrections Orders and indeed, contraventions have come in at Corrections Orders where they have been effectively no contact with the subject of the Order. That is, all contacts by phone or Zoom, WebEx and work was done from home.
49 Now, I am not saying it is that simple, I know that the Act has core conditions and one of those is to reside in Victoria and no doubt there is a whole regulatory body behind those sections. But I simply say again that, in this particular case, some flexibility if such flexibility is available, some ingenuity and some creativity if it resides somewhere within the Office of Corrections needs to be drawn upon.
50 All right, now, do you consent to the Community Corrects Order, Mr Dodt. Sorry, you cannot hear. Do you want to approach your client, Mr Gwynn.
51 MR GWYNN: Yes, thank you. Thank you, Your Honour.
52 HIS HONOUR: I am just asking if he consents as I formally have to.
53 MR GWYNN: He does, Your Honour.
54 HIS HONOUR: All right, well that is going to be prepared now, I will sign it. It does not start for three months. Now, Mr Dodt, Mr Gwynn and his instructor, your representatives are going to make every overture they can to Corrections to smooth this process. It is not my intention that you should have to relocate to perform this CCO because, notwithstanding what I might have said on the last occasion or what I might have said this morning, having reflected on it, the requirement for you to relocate would be a punishment over and above what the Corrections Order is designed to provide. So, I think that is all I need to say at this point. Mr Gwynn.
55 MR GWYNN: Yes, Your Honour.
56 HIS HONOUR: Your instructor you will have to see if he can make it work.
57 MR GWYNN: Yes, we will do everything we can.
58 HIS HONOUR: With Mr Dodt's cooperation.
59 MR GWYNN: Yes.
60 HIS HONOUR: And if I need to be - if it needs to be raised again with me by way of variation, we will deal with it then.
61 MR GWYNN: Thank you, Your Honour.
62 HIS HONOUR: In relation to the fine, I do not know if we still formally give stays, but it really - I will give a stay of three months.
63 MR GWYNN: Thank you, Your Honour. I think they are now enforceable by Fines Victoria and arrangements can be made
64 HIS HONOUR: Yes, so it can be instalments can be arranged.
65 MR GWYNN: Thank you, Your Honour.
66 HIS HONOUR: I have got the CCO now, I will just sign it and then your client will be asked to sign it.
67 All right, thank you. Thank you everyone, thank you Ms Locke and Mr Gwynn.
68 MS LOCKE: As Your Honour pleases.
69 MR GWYNN: Thank you, Your Honour.
70 HIS HONOUR: We will adjourn the court.
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