Director of Public Prosecutions v Doughney
[2019] VCC 1266
•12 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00602
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN DOUGHNEY |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2019 | |
DATE OF SENTENCE: | 12 August 2019 | |
CASE MAY BE CITED AS: | DPP v Doughney | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1266 | |
REASONS FOR SENTENCE
---
Subject:Sentence – dangerous driving causing death – momentary inattention – profound and genuine remorse – early plea of guilty – appreciation of impact on victims – need for specific deterrence significantly reduced – CCO appropriate disposition
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr I. Hill QC | Stary Norton Halphen |
HER HONOUR:
1 Just after 7am on 8 June 2018, on a dark winter morning, 69 year old Robert Smith was struck by a car as he was crossing the road near his home in Coburg. He was grievously injured. Two days later he succumbed to his injuries.
2 Mr Smith was crossing Bell Street at the intersection of Bell Street and Sydney Road in Coburg. He was on a pedestrian crossing, crossing on a green light. He was properly and safely within the time allocated for pedestrians. He was not doing anything careless or wrong.
3 The car that struck Mr Smith was driven by you, Lachlan Doughney. You were driving your wife to the nearby train station, as you almost invariably did at that time on weekday mornings. The area and the intersection was familiar to you. You were doing a right hand turn from Sydney Road into Bell Street. The lights facing you were green. As you approached the intersection, you judged there was a sufficient gap in the oncoming traffic to turn safely.
4 You were not running a red light or driving at excessive speed. You told police that, as you began your turn, a truck coming towards you appeared to speed up and you picked up your speed a little to accommodate that. There is, I note, no suggestion that you had tried to turn in a dangerously short gap in oncoming traffic.
5 Your wife, who was in the car with you, saw Mr Smith on the crossing and screamed 'stop', but you thought she was referring to the truck. You braked hard on impact, but it was too late.
6 You stopped and remained at the scene. By all accounts, you were deeply distressed, shocked, shaking and crying.
7 In addition to the traffic lights, there is an illuminated sign facing drivers doing a right hand turn as you were, south from Sydney Road into Bell Street. It says 'give way to peds.' You did not see it and told police later you did not ever recall having seen it at that intersection.
8 Testing conducted shortly afterwards showed that there was no alcohol or any drugs in your system. Fatigue played no role. Your car was roadworthy and properly maintained. You had a full drivers licence and were an experienced driver. You had an unblemished driving record and, indeed, there is no evidence of any troubling, antisocial or criminal behaviour in your past. You simply did not see a pedestrian you should have seen, who was lawfully crossing the road and to whom you should have given way.
9 As a driver, you owe a duty of care to other road users and you breached that duty by failing to keep a proper lookout and drive at a speed that is safe in the circumstances, being a speed that enables you to see and avoid striking other road users and that takes into account the difference in mass and force between even a slowly moving car and a pedestrian unprotected by anything other than the pedestrian lines and a green light. Your speed was estimated to be between 29 and 33kph. Even such a low speed can, as this collision so graphically illustrates, have catastrophic consequences if a pedestrian is struck and their head takes the impact of the car or the resultant fall to the ground.
10 You were arrested at the scene and interviewed later that day. You acknowledged that you were the driver of the car, your wife was in the front passenger seat and, just before the collision, you had entered the intersection with the traffic light applicable to you on green and had paused briefly before turning. You said that you checked for pedestrians on the crossing before commencing to turn. You saw that there was a sufficient gap for you to commence your right turn into Bell Street but then an oncoming truck had accelerated as it approached the intersection and your wife screamed 'stop'. You said you believed she was warning you about the truck. In response to your wife's scream, you turned your attention towards the truck and accelerated slightly and it was then that you struck Mr Smith. You said you did not see him until he was on your car and you did not recall ever seeing that illuminated 'give way to peds' sign at the intersection.
11 You took full responsibility in that interview and your position has not changed since then. You took full responsibility, not only for your driving but for your driving causing Mr Smith's death. That is, that it was your failure to keep a proper lookout that resulted in Mr Smith sustaining a fatal injury in the circumstances that I have just tried to identify.
12 And so it is that you, Lachlan Doughney, come before the court, having pleaded guilty to one charge of dangerous driving causing death, a charge whose gravity can in part be measured by the maximum penalty prescribed by Parliament, namely 10 years' imprisonment.
13 This is, I accept, a case of true momentary inattention and one where your moral culpability is commensurately low.[1]
[1]Bell v R [2018] VSCA 281, [54].
14 Mr Smith’s death is the primary tragedy. He was 69, retired, widowed a year earlier and planning to spend more time with his sister, someone he had only come to find and know in the 12 years before his death. He, his sister and another brother had all been adopted, separately, as babies. His sister, Patricia Lovell, said in her victim impact statement:
‘When I found my brothers in 2007, it was wonderful but we all felt a bit cheated that no one told us of each other's existence. We did think that we would be able to spend out last remaining years together but our brother, Malcolm, was taken by emphysema in 2015, which we accepted as it was a disease. Robert and I had talked about him coming to live at Victor Harbour and spending more time together after I had retired. I do have good memories of our last years together but it would have been nice to have had a little more time. I did not think that I would be catapulted into such an emotional and financial dilemma at this time in life because of someone else's error of judgment.’
15
Ms Lovell was called shortly after Mr Smith was hit and came from Victor Harbour to Melbourne. She was comforted to find Mr Smith’s brother-in-law and a close friend already at his bedside, and she was looked after by his friend during the distressing time she spent in Melbourne after she arrived.
That he had friends and family who were there at the bedside and that
Ms Lovell, as next of kin, agreed to donate Mr Smith’s organs, is clearly an enduring part of his legacy. It is clear from Ms Lovell's victim impact statement that he was looking forward to living the life still ahead of him, that he was loved and valued and those he has left behind mourn the loss of the opportunity he, and they, would have had to enjoy his future.
16 It is not to devalue the significance of Mr Smith’s death in this proceeding, or engage in any false equivalence, to say Mr Smith and his family and friends are not the only ones to carry the burden of what happened that day. Nothing can bring him back and whilst many others suffer as a result of this, it must always be borne in mind they still have their lives and that includes you.
17 You, Lachlan Doughney, are now 32. You were 31 at the time and, until this fateful morning, would have been counted by most as a person blessed by good fortune. You, I accept, have been profoundly affected by this. You are a changed person and I consider that you are likely forever to be so.
18 There is powerful evidence you have been left with, what your counsel described as, a range of intensely distressing emotions including shame, horror sadness and confusion. I accept the evidence that you are overwhelmed by the whole of what has happened, that you have been troubled by intrusive memories and ongoing sleep disturbance, that you have not driven a car since then, can barely contemplate being in a car or deal with being in a car and are unable to contemplate ever feeling able to take responsibility of being behind the wheel of a car again.
19 What is quite remarkable, in my view and in my experience, is the focus of your shame and distress. The overwhelming theme, from the wealth of material presented to me on your behalf on the plea, is that your primary focus, the focus of your remorse and distress, has been for Mr Smith.
20 I was provided with reports from the road trauma counsellor to whom you were referred by the police on the day of the collision and from whom you have been receiving counselling ever since, from the psychologist, Dr David Morrell, from whom you have been receiving treatment since that date, and from Mr Patrick Newton, a forensic psychologist who assessed you for the purposes of the plea.
21 I was also provided with the most comprehensive bundle of character references and testimonials that I have been presented with. They were from your family, your friends, some of whom have been your friends since primary school days, others from your undergraduate university days, others since then, and others from your postgraduate and professional colleagues. To say that I received testimonials from your family does not really do it justice. Individual letters were written by your father, your mother, your father's partner, your mother's partner, your brother, your wife, your wife's parents. They covered a broad cross-section. It is fair to say the people from your school days are themselves, like you, clearly high achievers. All speak in terms of great thoughtfulness and respect.
22 The testimonials from family and friends who fall into a generation older than you are also quite remarkable in tracing your course from childhood through to the promising academic that you are today. The reports from those with whom you have had professional contact in your university and academic career again speak quite compellingly and consistently of the sort of person you are.
23 Almost all of them noted that you referred to the victim as a real person. You called him Robert and many of them specifically in their references referred to him as Robert and said that was because you had done so. That is, for you, he clearly is a real person even though you never met him in his life.
24 It is common in a plea in mitigation to hear it said that an offender is remorseful. Sometimes those words are supported by evidence, often they are not. Often if there is evidence of remorse, it goes no further than evidence of the person coming to be sentenced expressing regret after the event or sorrow for the circumstances in which they now find themselves as a result of their conduct.
25 Your situation and the reports and evidence of your remorse are profoundly and remarkably different from those. The overwhelming theme from everybody who has written, people who knew you before this terrible day and who have seen you suffer since then, is that the primary focus of your remorse has been for Mr Smith and his family. You also have expressed, articulately, clearly, movingly and consistently the deep and profound remorse you have for the impact this has had on your wife. Your counsellor, psychologists, family, friends and colleagues again consistently and overwhelmingly say is secondary to the remorse you express for Mr Smith and his family.
26
Your wife, as I have already noted, was a passenger in the car. She saw Mr Smith when you did not. She did what she could to warn you but it was too late.
She ran to Mr Smith’s aid and did what she could to help him until the paramedics arrived. She was, and remains, deeply traumatised and you clearly carry the burden of accepting responsibility for the impact this has had on her. You see her, rightly, as another victim.
27 Again, the reports and the testimonials with one voice report that it is only with probing that you will at times acknowledge your own suffering.
28 The testimonials again overwhelmingly describe you as a good, ethical, deep thinking person with a well-developed social conscience. You are variously described as respectful, courteous, responsible, considerate, hard-working, compassionate and empathetic. They are just some of the words that have been used. They speak of your struggle to reconcile your acceptance of having caused the death of another person by your driving on this day with your sense of who you are, of the values you stand for and what you believe in.
29
At the age of 31, you were properly to be regarded as a high achiever.
You have completed a PhD, in philosophy itself. I am told that your thesis related to attention of the human mind in the sense of existence and being. That your sense of the sort of person you were, as described in the testimonials, could be so challenged by the appreciation that it was your conduct in the driving of your car that resulted in the death of another human being, has deepened your sense of grief and remorse.
30 The testimonials from those who you have worked with in the university sector, your chosen career path even as you pursued your postgraduate studies, and since attaining your PhD, also attest to your academic brilliance and your academic and professional achievements and application. You have from the outset been completely frank with your employers and have kept them updated with the progress of the criminal proceeding. Reading from the vast number of statements supplied from your current employer and your past university employer shows that a combination of their appreciation for the person you are, for your academic talents and the skills you bring to your current university position, has resulted in your employers providing you with, not only support for your own well-being, but also with a continued promise of employment and progression along what appears to be an extraordinarily promising career path. It does not appear however from any of the reports that have been provided to me that anybody is minimising the seriousness of the conduct which brings you before this court and the conduct for which you have pleaded guilty, but rather an understanding of the sort of person you are and how that stands in such stark contrast to a person facing a criminal charge. It shows again the wide variety and differences between criminal behaviour and conduct that can bring somebody within the criminal justice system.
31 Even before you were charged, you wrote a detailed letter expressing your guilt, sorrow and shame to Mr Smith’s family, consistently with the considerate and compassionate person that you have been described as. You understood that you could not send it directly to them but you provided it to the informant so it could be provided to them if and when they wished to see it. Again, clearly, this demonstrates your concern for their welfare rather than your own. In that letter, you took full responsibility for what you had done and, consistently with what you indicated after you had been charged, expressed your intention to plead guilty at the earliest possible opportunity to this charge.
32 Your plea of guilty clearly is evidence, not only of advancing the interests of justice by avoiding a trial and any added trauma to be caused to Mr Smith’s family, or to those people who saw what happened or who attended the scene to assist, but it also supports the otherwise already overwhelming body of evidence to which I have a referred of your remorse.
33 You are clearly, as a result, entitled to a considerable reduction in the sentence that otherwise would have been appropriate by reason of that acceptance of legal and moral responsibility and the very early guilty plea.
34 It is clear that, in a case such as this, where driving has resulted in the death of a person, that the sentence to be imposed must reflect the value of life that has been taken and the moral culpability of the person who took that life.
35 Sentencing must serve the purposes of denunciation, deterrence both general and specific, and just punishment. It must also serve to promote and encourage rehabilitation and, where appropriate, serve the needs of protection of the community.
36 I am satisfied, in this case, that the sentencing purposes prescribed by s 5 of the Sentencing Act can all properly be served by the imposition of a sentence which does not involve a term of imprisonment. I have already noted that I accept and find your moral culpability is low. Your acceptance of responsibility and the powerful evidence of the impact of this offending on you all point to the needs of just punishment, denunciation and general deterrence properly being able to be served by the imposition of a non-custodial sentence. I do not consider, having regard to the matters that I have already outlined, that weight need be given to specific deterrence in the circumstances. Nothing the court can do in the sentencing hearing or in the imposition of sentence, in my view, can add to your appreciation of the impact of your behaviour. You have already fully accepted that and sought to come to terms with it. I accept that you are unlikely to commit any type of offence ever again.
37
You have not only accepted responsibility for what you did, which resulted in
Mr Smith's death, but you have shown an extraordinary resilience too that is not the result of a lack of care. You accept that must face your future as a man changed from the one who got into that car just a few minutes earlier that morning to drive your wife to the station. You have accepted that, with the talents you have, with the education you have, with the family and friends around you and with the responsibility you have to your wife, that you cannot just allow this to define and consume you. You have continued to work. You have actively engaged in the support and counselling that has been recommended to you to help you reconcile those different parts of yourself, the person who, by this, caused somebody's death and the person who you otherwise thought you were and otherwise still are, but you have not made it all about you and all about your suffering. You have clearly tried to do what you can to learn from it, to support those affected by what you have done but also to understand that you need to keep yourself mentally healthy and able to engage in work in order to properly discharge those continuing responsibilities.
38 You clearly acknowledge that, not only do you have to or should you keep on using your talents, you need to look after your mental health if you are going to be able to continue to play a role in managing the direction of your own life and that you need to look after your wife to whom you have already, it would appear, uncomplainingly and unstintingly continued to support as she grapples with her own grief and trauma as a result of what she was exposed to this day.
39 These are all powerful factors which also point to your understanding of the responsibility you have taken for your own rehabilitation when it would have been very easy to simply say, 'I am a crushed and broken man, I have done something terrible and I cannot recover from it.' You will not entirely recover. You will be a different man but you have demonstrated already an awareness that you can continue to be a man of significant achievement and that, in a sense, you have got a responsibility to do that. So this is something that the sentence should reflect and acknowledge and continue to encourage.
40 You have been assessed for suitability for a community correction order and not surprisingly have been found to be suitable. As I have said, in my view, that is the appropriate disposition. I note that the prosecution, having been provided with the wealth of material in the police brief but also with the overwhelming wealth of material about you that were provided in the course of the plea, acknowledges that this is one of these unusual cases of offence of this type where a non-custodial sentence is properly within range.
41 The community correction order that I intend to impose has both rehabilitative and punitive elements. I am going to require you to engage in unpaid community work. That clearly is a punitive element. I consider that not only will that enable you to give something back, and you clearly have skills and talents that can be brought back and given to the community, but it also may be a way of you understanding that this is a way of doing your punishment. I am also going to direct you engage in treatment and rehabilitation for mental health as directed. It is my anticipation that you will be directed to continue to engage with those professionals with whom you already have a therapeutic relationship. Clearly your prospects of rehabilitation and the assessment I have made of the unlikelihood of your committing further offences are very much dependent upon your continuing to look after your own mental health.
42 The outcome of today cannot undo the past but it can acknowledge the wrong done, impose a punishment and mark it by the imposition of a conviction for this charge. It can also allow you to recognise the good you have done, your potential and to encourage you to come to terms with what you have done but not operate to squander your talents or your sense of great responsibility to those who survive and who are around you. Finally, a community correction order will allow you to contribute the greater benefit that you obviously can be to the broader community, given your high achievements to date.
43 Lachlan Doughney, on the one charge of dangerous driving causing death to which you have pleaded guilty, you are convicted. You are sentenced to be placed on a community correction order for a period of two years. I need to read the conditions to you but let me just tell you, in addition to the core conditions which apply to all community correction orders, there will be two conditions specially directed towards you and they are that you perform 200 hours of unpaid community work over the period of two years of the order and that you engage in such mental health treatment as is directed.
44 The conditions of the community corrections order are these, and I am reading them to you now because I cannot impose it unless you consent. I understand from the report that has been provided to me that that has already been explained to you and you have indicated that you are prepared to consent to the conditions. The conditions are these. The mandatory terms are that you must not commit any other offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations. That means you must not be impaired by drugs or alcohol at any time that you attend Corrections or attend any program directed by Corrections and that you must submit to drug and alcohol testing if directed to do so.
45 You must report to and receive visits from the Secretary or delegate. You must report to the Melbourne Community Correctional Service at 50 Franklin Street, Melbourne within two clear working days after the commencement of this order, that is by Wednesday afternoon of this week.
46 You must let a Community Correction officer know within two clear working days of your change in your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and direction of the Secretary or delegate.
47 The conditions I impose in addition to the mandatory terms are that you must perform 200 hours of unpaid community work over a period of two years as directed by the regional manager. If you fail to comply with this condition, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s 83AU of the Sentencing Act. You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager. Do you understand the effect and conditions of this order?
48 OFFENDER: Yes, your Honour.
49 HER HONOUR: Dr Doughney, do you consent to it being made?
50 OFFENDER: Yes, your Honour.
51 HER HONOUR: I will have that handed down. Mr Hill, can you or your instructor accompany my associate and make sure that Dr Doughney understands that and have him sign it.
52 Pursuant to s 89(2A) of the Sentencing Act, I declare that all licences held by you are cancelled and you are disqualified from obtaining a licence for a period of 18 months. I am not going to make a forensic sample order. In my view, for the reasons I have expressed, it is not warranted or appropriate.
53 Are there any further orders that are required to be made?
54 COUNSEL: No, your Honour.
55 MR DOYLE: Section 6AAA.
56 HER HONOUR: I do not have to do it with a CCO.
57 MR DOYLE: You do not have to, yes, because it's a CCO, yes.
58 HER HONOUR: I am told that for two years or more, I must. It has been changed.
59 MR DOYLE: Then 6AAA. I did not know that had been changed, your Honour.
60 MR HILL: I did not either.
61 HER HONOUR: Section 6AAA (1)(b) which apparently was inserted by Act No 65 of 2016 requires a 6AAA declaration if a CCO for two years or more is imposed.
62 I declare pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty, I would have imposed a term of imprisonment of 18 months with a non-parole period of six months.
63 Just to explain, the law requires when sentencing a person who has pleaded guilty for the court to identify what sentence would have been imposed if they had pleaded not guilty and been found guilty by a jury. The sentence I first declared, that is the two year community corrections order with those conditions is the sentence actually imposed upon you.
64 Dr Doughney, once a copy of this CCO has been made, and it will be made here in court now and provided to you, you will be free to leave the court. You are free to leave the dock now.
65 No further orders?
66 MR DOYLE: No, your Honour.
67 HER HONOUR: Thank you, please adjourn.
- - -