Director of Public Prosecutions v Doughty

[2023] VCC 1783

fex

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-23-01305
Indictment No. N11194443

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DOUGHTY

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Warrnambool
DATE OF HEARING:	27 September 2023
DATE OF SENTENCE:	28 September 2023
CASE MAY BE CITED AS:	DPP v Doughty
MEDIUM NEUTRAL CITATION:	[2023] VCC 1783

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Guilty plea – culpable driving – negligent cause serious injury – negligence based on alcohol reading and failing to stop at stop sign – relevant prior conviction for drink driving – no valid visa certain deportation leading to increased burden of imprisonment ­­ – good prospects of rehabilitation – general deterrence and just punishment.

Legislation Cited:      Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins [2007] VSCA; DPP v Zhao [2018] VSCA 267.

Sentence:                  8 years and 2 months with minimum of 5 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Moore	Office of Public Prosecutions
For the Offender	Mr Hill KC with Mr Smith	Tony Hargreaves & Partners

HIS HONOUR:

1Mark Doughty, you have pleaded guilty to a charge of culpable driving and a further charge of negligently causing serious injury arising from a motor vehicle collision on Saturday 4 June 2022.  At around 1.20 am you were driving towards Cobden.  You drove straight through a stop sign and another vehicle which had right of way collided with your vehicle.  The front seat passenger, Max Boggs, who was just 18 years old, was killed and the back seat passenger, Jack Finlay, was seriously injured.

2You were working at Monk and Son, an agricultural services company in Cobrico, near Cobden.  After work you went to Thommo’s Hotel in Cobden with co-workers including Mr Boggs and Mr Finlay.

3You were 25 years old at the time.  You are from Ireland, and you were here in Australia on a working visa.  Mr Boggs was also from Ireland.  He had been in Australia since just 1 May 2022.  Mr Finlay was 20 years old, and he is also from Ireland.  He had been in Australia since March 2022 on a working holiday visa.

4

At Thommo’s Hotel, the bar attendant, Matilda Perris, remembers seeing you and your group in the hotel and serving the group about ten drinks, which included beer and then mixed spirits.  You left the hotel just after midnight with Mr Boggs and

Mr Finlay as you passengers.

5You drove back to your house at Torboys Road in Cobden, about five to six kilometres out of town.  You were apparently due to fly home to Ireland the following day and you intended to go home to pack your bags and to get to sleep.

6The three of you watched television for a while.  Your housemate became upset when the three of you were making too much noise.  Mr Boggs received a text to go back to the hotel.  You offered to drive Mr Boggs and Mr Finlay back to Cobden.

7At about 1.20 am, you were driving east along Hallyburtons Road towards the intersection with Cross Forrest Road.  At this intersection there is a stop sign facing the traffic on Hallyburtons Road, and the traffic on Cross Forrest Road has right of way.  There are lines painted on the roadway to indicate the stop sign.  You failed to stop, and you travelled directly through the intersection.

8At that exact time, Matilda Perris, who had left Thommo’s at about 12.30 am and had driven some friends home to Camperdown, was travelling south along Cross Forrest Road past Hallyburtons Road.  Her vehicle collided with the passenger side of your vehicle.  Mr Boggs was thrown from the vehicle.  He sustained serious injuries which caused his death.  Mr Finlay was also injured in the collision.  He sustained a broken jaw and fractures to six ribs, a fractured pelvis, a punctured adrenal gland, and damage to his liver.  He had to be airlifted to hospital.

9Both vehicles came to rest in a paddock on the south-east side of the intersection.

10

Ms Sherrin Grant lived near the intersection and heard the bang of the cars colliding.  She made her way outside to the collision scene where she spoke to

Ms Perris and to you.  She saw Mr Boggs critically injured on the ground.  She cared for him until the ambulance arrived.

11Emergency Services had been called and attended at the scene.

12

You were taken to South-West Healthcare, a hospital, where you were admitted.  You remained in hospital until 9 June 2022.  A blood sample was taken from you approximately two and a half hours after the collision.  This sample was analysed and found to contain 0.185 grams of alcohol per 100 milligrams of blood. 

Dr Sanjeev Gaya, an expert from the Victorian Institute of Forensic Medicine, assessed the blood alcohol reading and formed the view that, at the time of the collision, your blood alcohol reading was between 0.210 and 0.234 per cent. However, the actual blood alcohol concentration while driving may have been lower than this range if there was still an amount of alcohol unabsorbed in the stomach, and this cannot be calculated.  

13The vehicle that you were driving was a 2006 Holden Astra which was owned by another Irish national who had returned to Ireland.

14You did not have a licence to drive in Victoria.

15At the time of the collision, it was dark, and the roads were wet, and it was raining heavily, contributing to a lack of visibility. 

16The vehicle was examined and there was insufficient tyre tread depth on all four tyres, but none of the tyres showed signs of malfunction or failure prior to the collision.  The car had no faults, failures or conditions that could have caused or contributed to the collision.

17Reconstruction evidence established that, at the time of the collision, Ms Perris was travelling at around 80 kilometres per hour and your vehicle was travelling between 88 and 97 kilometres per hour.

18No one in your vehicle was wearing a seatbelt when the collision occurred.  I was told by your counsel Mr Hill, and I accept, that the reason for this was that the vehicle was used at your work where you and others had to regularly stop and open gates and so a practice developed whereby the seat belts were buckled underneath to prevent the seatbelt alert from sounding and this practice carried over to ordinary driving.

19At the scene, you did not admit to police that you had been driving the vehicle.  You told the police you did not know who was driving.

20You were later interviewed on 10 June 2022, and you made a no comment record of interview.

21Dr Gaya’s opinion was that a blood alcohol reading in the range that you had would significantly and adversely impact on the cognitive skills required for driving, and that you would have been incapable of having proper control of the motor vehicle.

22The prosecution case of criminal negligence is based on:

·Your high alcohol reading because of which you were incapable of having proper control of the vehicle; and

·Failing to stop at the applicable stop sign.

23You have pleaded guilty to the culpable driving charge, which has a maximum penalty of 20 years’ imprisonment.  The standard sentence for culpable driving is eight years’ imprisonment.

24

You have also pleaded guilty to negligently causing serious injury in relation to

Mr Finlay, for which the maximum penalty is 10 years’ imprisonment.

25An offence of driving with more than the prescribed concentration of blood alcohol has also been prosecuted.  The maximum penalty for that offence is a fine and licence disqualification is mandatory.

26For an offence of culpable driving, I am required to cancel any licence you hold and disqualify you from driving for a period of two years.

27You pleaded guilty on 1 August 2023, when this matter was listed for a contested committal hearing.  The case resolved to a guilty plea leading up to that day.

28You have been in custody for this offence since 1 August 2023, the date of the committal hearing.  You also spent five days in custody after your arrest before being granted bail.

Victim Impact Statements

29A victim impact statement from Mr Boggs’ mother, Rhonda Connell, was tendered.  Ms Connell says, in her statement, that no words can describe the pain that his death has had on her, her husband, Mr Boggs’s stepfather, David; and Mr Boggs’ 14-year-old sister Katie.

30She says that they are consumed by grief emotionally and physically.  Her statement in its entirety powerfully captures the grief which they have experienced and the ongoing psychological impact on them. 

31Mr Boggs’ stepmother, Lorraine Boggs, says in her victim impact statement that all Mr Boggs wanted was to eventually work alongside his father and uncle on the family farm in Ireland.  He was in Australia during the off-peak season in Ireland and then planned to return to Ireland for the busy season.  She said that she and Mr Boggs’ father feel some guilt at letting him leave Ireland and come to Australia. She describes the devastation of his death and the void that it has left in the life of the whole family.  She describes the impact as utter devastation.  She had to break the news to his brothers and sisters which she said was the hardest thing she has ever had to do.   

32Sherrin Grant in her victim impact statement says that although she believes she did all she could for Mr Boggs she feels that she failed.  She carries that burden, and it has affected her personally physically and emotionally.  She says she has lost her passion for nursing and feels like she has lost herself. 

33Matilda Perris, the other driver that was involved in the collision, says she suffered injuries in the collision including a bulging disc in her back, which causes her to have pain in her legs and which she says is likely to be a lasting injury.  She missed 13 weeks of work and is now back part time at a reduced capacity due to injuries she sustained.  This has had an adverse financial impact on her.  She also says her enjoyment of life has drastically reduced, as she is now limited by what she can do due to her injuries.  She often has trouble sleeping at night or staying asleep at night.

34It is apparent from the victim impact statements that Mr Boggs was much loved by his family and their lives have been diminished forever by his death.  Moreover, the impact of your offending on Ms Perris and Ms Grant has been significant.

35I acknowledge that the period waiting for the legal proceedings to be finalised has been a protracted and painful one for the people affected by this incident. 

36

There can be no equivalence between the sentence I impose and the life of

Mr Boggs and the impact of his death on those who loved him.  The sentence I impose is not a measure on the worth of his life.  No sentence I impose can restore him to his family and his friends or undo the tragic events of 4 June 2022. 

37Instead, the sentence I impose must reflect all the matters a sentencing judge is required by law to consider in deciding an appropriate sentence of which the devastating impact on Mr Boggs' family and the other victims is a significant matter.

Driving history

38Apparently when you arrived in Australia, you held an Irish driver’s licence which was valid, but you did not apply to convert to a Victorian licence within the six-month period that applied.

39You have a relevant criminal history for driving offences.

40At Warrnambool Magistrates' Court on 25 February 2021, for stating a false name, speeding, and driving whilst disqualified, you were fined $500 without conviction. As I understand it, based on the defence written submissions, you had been the subject of an earlier infringement notice which must have been the basis of some disqualification.

41On 14 February 2022 at Armadale Magistrates' Court in Western Australia for driving under the influence of alcohol you were disqualified for 10 months and fined $1700.

42You are not to be punished again for your prior convictions, but they are relevant to the assessment of your prospects of rehabilitation, the weight to be given to specific deterrence and to your moral culpability for this offending. 

Offence seriousness

43The offending of culpable driving causing death is, by its nature, a grave offence, involving the death of another human being.  The seriousness of the offence is reflected in the maximum penalty fixed by Parliament of 20 years' imprisonment and the standard sentence of eight years’ imprisonment.  Negligently causing serious injury is also a serious offence carrying a maximum of 10 years.

44The criminal negligence of your driving is underpinned by your heavy consumption of alcohol reflected in your very high blood alcohol content, approximately four times the legal limit at the time of driving, on the evidence of Dr Gaya.  It seems to me your failure to observe the stop sign was a by-product of your intoxication.  You probably did not even notice it.  Perhaps the road layout and the conditions contributed but that was the road and those were the conditions you chose to drive in, having consumed a large amount of alcohol.

45You did not intend to drive through the stop sign but you decided to drive when you had been drinking in an unrestrained way for hours.  You were a danger to your passengers and any other drivers you encountered.

46You should not have been driving.  You had been disqualified in February 2022 for a drink driving offence.  That conviction resulted in disqualification of your licence just four months before this incident and it is an aggravating factor.  It elevates your moral culpability in choosing to drive after drinking so much alcohol. Not long before you had been dealt with by a court and disqualified for just that, but you disregarded that clear message.

47Mr Hill submitted that other aggravating factors sometimes seen in culpable driving and negligent serious injury cases are not present in this case.  He listed such features in his written submissions and on the plea in this matter.  I accept that those aggravating factors are not present in this case.

48As regards the serious injuries to Mr Finlay, it was submitted that he suffers no ongoing health concerns other than physiotherapy for his jaw so that his injuries are not catastrophic or lifelong as is so often the case in a motor vehicle collision.

49It was submitted that objectively assessed the offending falls within the middle range of seriousness for offences of culpable driving and negligently causing serious injury.  The prosecution agreed with that characterisation.  I accept the offending falls within the mid-range.

Personal circumstances

50You are now 26 years old.  You were born and raised on a dairy farm in Cavan, Ireland, where you parents still live.  They are in their early sixties.  They still work on the family farm.

51You are close with them, and you speak to them regularly from the prison via video calls.  Your mother, Rosaleen, has provided a reference.  You have discussed the offending with your parents.  They are supportive of you.

52Your father, David, was diagnosed with coronary artery disease in October 2022.  He has had multiple operations inserting stents into his coronary arteries.  It is likely he will soon need open-heart surgery.

53You are the second oldest of your siblings.  You have an older brother who is a police officer in Ireland and your younger brother who is a farmer.  Your younger sister has Down Syndrome.  You have a particularly close relationship with her.  She has been very upset by your absence.

54You completed the equivalent of Year 12 at St Clare’s College in Cavan. 

55You came to Australia in March 2019 on a working holiday visa. 

56You previously worked as a farm hand in England and New Zealand on working holidays.  You drove trucks for six months in Sydney after you arrived in Australia and then you worked at Monks in 2019 and 2020.  You worked in Western Australia as a truckdriver in the mines in 2021 and 2022 and then returned to Monk Agricultural where you were working at the time of this offending.

57At that time, you were employed as a machinery operator.

58Your visa expired during the COVID-19 pandemic and then you were given a COVID bridging visa, which expired in March 2023.  You, therefore, have no visa which would allow to you stay in this country at the end of your sentence.

59You were considered a hardworking and valuable employee at Monk Agricultural.  Mr Samuel Monk provided a reference which confirms this.  You were offered ongoing employment after the offending which you took up until you went into custody at the committal proceeding.

60When you are released from the sentence, I will impose for this offending you intend to return to Ireland to help your parents with the family dairy farm.

Character

61Letters of support from were tendered from your mother Rosaleen, James Clark who was a teacher of yours at your school, Ann Carroll a close family friend, Daniel Ryan a friend and co-worker at Monk Agricultural who attended court in person, Karl Hennessy, Samuel Monk, and Paul Borland who employed you in Western Australia. 

62Your family and friends in their letters of support speak of you as a kind, respectful, hardworking, and friendly young man.

63Your mother described you as withdrawn when she and your father visited you in Australia in 2022 and says that in her observation based on lengthy phone conversations with you, she has had with you after they returned home your mental health seemed to decline further.  As I said earlier, your family remain supportive of you, and it is clear they will be there for you when you finish your sentence.

Guilty plea

64You offered to plead guilty to dangerous driving causing death on 2 May 2023 and then the matter resolved to the charges on the Indictment on 19 July 2023.  At that time, you indicated you would go into custody at the committal hearing.  On 1 August 2023 you did so.  No witnesses were cross-examined.  I accept this should be regarded as an early plea.

65I accept that by pleading guilty you have demonstrated a willingness to facilitate the course of justice.  You have saved the court and the prosecution the time and expense of a contested trial.  Your guilty plea spares the witnesses the experience of reliving these distressing events during evidence at a trial.  I accept your guilty plea indicates remorse for your offending.

66The utilitarian value of your plea is heightened in the current circumstances where this court still faces a backlog of trials because of the suspension of its operations during the pandemic and I apply the principles in the case Worboyes v R [2021] VSCA 169.[1]

[1] Worboyes v R [2021] VSCA 169

Remorse

67In addition, you have expressed remorse to your mother and father, to Mr Monk, to Mr Newton, the forensic psychologist who assessed you, and to your counsellor, Ms Karly Doyle.  I accept that you are genuinely remorseful, and you will have this incident on your conscience throughout your life.

Extra curial punishment

68In the collision, you suffered an injury to your spleen, internal bleeding, a fractured rib, and some soft tissue injuries.  Your spleen was removed.  In hospital you contracted pneumonia and were treated with antibiotics.

69You have ongoing pain and cramping from the injuries.  I am told you will be required to take antibiotics and adhere to a recommended vaccination regime for the rest of your life due to a diminished immune response as a result of the removal of your spleen.  You are receiving the required treatment in custody.  There are medical risks in the first three years after spleen removal.

70I take into account, as I am required to do by the law, the injuries you received and their residual impact as extra-curial punishment which is a moderating factor on the sentence to be imposed.

Psychological issues

71You had no psychological issues before the offending.  You have experienced significant stress since the offending.  You have been diagnosed by Mr Patrick Newton as suffering from a major depressive disorder, and residual anxiety.

72You have been undergoing counselling with a social worker, Karly Doyle, who has provided a report.  You have continued to engage with her while you have been in custody.  You also had counselling with a psychologist, Mr Peter Hanley, during this year.

73You are prescribed an antidepressant, Mirtazapine.

74Mr Newton indicates that your mental health has improved over time with the counselling support you have received.  He says that this counselling may not continue to be available in the custodial environment and therefore your conditions are liable to deteriorate.  It was submitted that Verdins’ principles 5 and 6 have application based on Mr Newton's report and call for some moderation of the sentence to be imposed.[2]  Mr Moore, the prosecutor, accepted that these principles have some application and I have taken them into account as increasing the burden of your imprisonment, although to a fairly modest extent.

[2] R v Verdins [2007] VSCA

75Apparently, your alcohol consumption increased when you moved to Australia.  There was a heavy drinking culture at your work.  This involved going to hotels and other social events, particularly farewell parties for workers leaving.  Mr Newton describes your history as a long history of heavy drinking and said that at the time he interviewed you, you only had superficial insight into your drinking habits.

76He diagnosed you as having a Moderate Severity Alcohol Use Disorder.  He says in his report that you would be well advised to pursue an abstinent lifestyle.

77In your counselling sessions with Ms Doyle, you have engaged well and demonstrated some insight into your problematic drinking behaviour.

COVID conditions

78It was submitted that there are some continuing restrictions within the prison system because of COVID-19.  Specifically, there are significant wait lists for programs, courses, and educational opportunities.  You do though have employment at the remand centre in the metal workshop from Monday to Friday between 9 and 3 pm but you have limited access to programs at this stage.

Isolation

79In addition, you have a limited social network in Australia, with your family in Ireland.  Therefore, prison will be a very isolating experience for you, and you have had only one visit since you went into custody on 1 August 2023.  The burden of your imprisonment will be increased by your isolation, and I have taken this matter into account as a moderating factor on the sentence.

Deportation

80Mr Hill submitted that the burden of your imprisonment will be increased by serving your sentence in the expectation of being deported after your release.  You have no valid visa and no chance of getting one and you want to return to Ireland.

81Whether you will be released on parole and if you are to be released on parole at what point that might happen is not clear.  If you were to be released a period in immigration detention before deportation would seem inevitable.  Mr Hill referred to the case of DPP v Zhao in which this issue was discussed.[3]  Of course, I cannot consider future executive action such as a decision of the Parole Board, and I do not, but I accept that the burden of your sentence will be greater in the knowledge that you may not be granted parole at the expiration of your minimum term and that you may face a period in immigration detention.

[3] DPP v Zhao [2018] VSCA 267

Prospects of rehabilitation

82It was submitted, based on the evidence of good character and your employment history, that you have bright prospects of rehabilitation.  You have an impressive work ethic and supportive family and many people who speak positively of your character.  In prison you have a job and you have been doing what you can to further your rehabilitation. 

83Although you seem to have developed an entrenched drinking problem since coming to Australia and you have prior convictions, including a conviction for drink driving, in my opinion, given the positive factors to which I have referred, the enormity of this event and its impact on you, and the lengthy gaol sentence I must impose, there are reasons to be optimistic that when you are released and return to your family in Ireland you will have employment and you will be able to lead a productive, law-abiding life.  However, you will need to address your problems with alcohol.

Standard Sentence

84The standard sentence for culpable driving is eight years.  That period applies to an offence in the mid-range of seriousness considering only the objective factors relating to the seriousness of the offence.  The standard sentence, like the maximum penalty, is a guidepost for the court to consider.  It is not the starting point from which to add or subtract.  It is one of the many factors that I am required to consider in the instinctive synthesis of sentencing.

85The sentence which I will impose is just below the standard sentence for culpable driving. I have taken into account all of the matters I am required to consider under s5(2) of the Sentencing Act, including the standard sentence.

86In sentencing for a standard sentence offence, in considering current sentencing practices, I may only have regard to sentences previously imposed for standard sentence offences of culpable driving.  I have read and had regard to the standard sentence cases in the table of comparative cases provided by the defence, which are helpful.  Current sentencing practices are one of the many matters I must consider in deciding the sentence in this case.  They are a guide but not a controlling factor in deciding the appropriate sentence.

87In fixing a non-parole period for a standard sentence offence I must fix a non-parole period of at least 60 per cent of the relevant term in circumstances where the sentence is less than 20 years, which it will be in this case.  No submissions have been made that I should impose a non-parole period of less than 60 per cent.

Sentencing principles

88The sentence I impose on you must give effect to the principles of general and specific deterrence, denunciation, just punishment and protection of the community.

89General deterrence is the most important of these principles.  The message must be sent that the community will not tolerate innocent people being killed by those who drink and then drive.  It is imperative that the message of deterrence is sent out, particularly to your demographic of young men so often involved in offending of this type.

90Deterring you from drinking and driving is also a relevant principle but reduced by the fact that this is your first time in prison which will in my opinion weigh heavily on you for the reasons I have referred to in these remarks, and also considering the extra-curial punishment of the injuries you received.

91Through the sentence I impose I must denounce your offending.

92Just punishment must also be given weight.  Many people have been affected by your actions including Mr Finlay, Ms Perris and Ms Grant.  A young man with his life ahead of him died because of the decisions you made, and the impact of his death on his family and friends will be lifelong.  The need to recognise the real significance of these factors informs just punishment.

93I must not though lose sight of your rehabilitation.  You are still a young man, and I have a favourable view of your prospects of rehabilitation.  In deciding the length of the individual sentences, the total effective sentence, and the non-parole period I have had regard to the need to promote your rehabilitation.

94In fixing the sentences in this case I have had regard to the parsimony principle and the need to avoid a crushing sentence.

Totality

95The totality principle requires the total effective sentence to be proportionate to the overall criminality of the offending.  Some cumulation is required as there were two people who were direct victims, but substantial concurrency is necessary to give effect to the totality principle given the two charges are based on the same conduct.  Now Mr Doughty, I am about to proceed to sentence in this matter.

Sentence

96On Charge 1 you are convicted and sentenced to a period of imprisonment of seven years and eight months.

97On Charge 2 of negligently causing serious injury, you are convicted and sentenced to a period of imprisonment of two years.  Six months of the sentence on Charge 2 will be cumulative on the sentence for Charge 1, which makes a total effective sentence of eight years and two months.

98I fix a minimum non-parole period of five years and four months.

99On the summary offence of driving in excess of the prescribed blood alcohol concentration you are convicted and fined the sum of $600. `Your licence is cancelled and disqualified for 36 months.  

100In relation to Charge 1 of culpable driving I will cancel and disqualify your licence for two years.  Those periods are concurrent, so the total effective disqualification is three years.

101I allow pre-sentence detention under s18 of the Sentencing Act of 62 days to be deducted from the sentence that I have imposed.

102I indicate that but for your plea of guilty I would have imposed a sentence of 11 years and eight months with a minimum non-parole period of eight years. I make that declaration under s6AAA of the Sentencing Act.

103Mr Moore, is there is a disposal order if that could be forwarded, and I will make that order.

104MR MOORE:  Very well, Your Honour.

105HIS HONOUR:  Mr Doughty, that is the sentence I impose in this matter.  Do either counsel require any clarification?

106MR SMITH:  No, Your Honour.  If Your Honour pleases.

107HIS HONOUR:  Thank you.  I will adjourn till 10 o'clock.

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