Director of Public Prosecutions v Duck
[2022] VCC 1076
•8 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00396
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE BERNARD DUCK |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 5 July 2022 | |
DATE OF SENTENCE: | 8 July 2022 | |
CASE MAY BE CITED AS: | DPP v Duck | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1076 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Dangerous driving causing death – Plea of guilty – Remorse – Low moral culpability – Psychological reports – Special reasons – Category 2 offence – Substantial and compelling circumstances Exceptional and rare – Delay – Low risk re-offending – No criminal history – PTSD – Community Correction Order
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: DPP v Liang [2022] VCC 170; DPP v Parker [2022] VCC 681; DPP v
Baskerville [2022] VCC 776; DPP v Di Fuccio [2022] VCC 949; DPP v
Marlow [2021] VCC 1004 and 956; DPP v Graham [2021] VCC 1585;
DPP v Nasser [2020] VCC 1660; DPP v Ballan [2020] VCC 883; R v
Lu [2022] VSC 258; DPP v Zogheib [2015] VSCA 334; R v Whyte
[2002] NSWCCA 343; DPP v Neethling [2009] VSCA 116; Worboyes v
The Queen [2021] VSCA 169
Sentence: TES: 3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Warren with Ms N Grunwald | The Office of Public Prosecutions |
| For the Accused | Mr B Johnston | Marco Man Lawyers |
HER HONOUR:
1Tragically, on 27 June 2019, 87 year old Choi Yu Louey was hit and killed by a truck as she was crossing the road, going about her day shopping. Unfortunately for you, Mr Duck, you were the driver of that vehicle. As a result you were charged with dangerous driving causing death.
2Your case was due to start as a trial before me on 7 July 2022. On 4 July you sought a sentence indication on the charge of dangerous driving causing death. Pursuant to s. 207(1)(a) of the Criminal Procedure Act 2009 (Vic) on 5 July I indicated that I would impose a community correction order. After this indication you agreed to plead guilty to the charge and you were arraigned. I ordered a pre-sentence report as to your suitability for a community correction order and you have been assessed as suitable.
3At the outset, I must acknowledge that the death of Ms Louey has caused deep and profound grief to her family and all those who knew and loved her. It is my duty to sentence you in accordance with the criminal law. The sentence I impose is in no way a measure of the worth of Ms Louey’s life nor could it ever be.
Circumstances of offending
4The full circumstances of your offending are set out in the Prosecution Opening for Sentence Indication Hearing dated 11 June 2021.[1] What follows is a brief summary of the circumstances of your offending.
[1] Exhibit A on the Plea.
5On 28 June 2019, shortly before 6am, you began your work-day as a driver of a Mercedes Benz Tipper truck and trailer for Luka Transport. Prior to this day, you had been operating trucks and trailers of this variety for about five years. Your role was to transport dirt from a construction site on A’Beckett Street, near the Queen Victoria Market, to a landfill in Skye.
6Shortly before 12pm, you were engaged in your third journey between the two sites. The day had been unremarkable. The weather and road conditions were good, being a sunny day with good visibility, and dry road surfaces. You were driving west on Victoria Street, and came to stop at a red-light at the intersection of Victoria Street and Peel Street. You were in the left-hand lane, and prepared to turn left into Peel Street.
7CCTV footage of the incident shows Ms Choi Yu Louey walk down the footpath of Peel street in the direction of the intersection. Ms Louey was aided by a walking stick and was carrying shopping bags with fruit and vegetables. When she reached the corner of Peel and Victoria Streets, Ms Louey sat down on a seat outside a café. After a short time she walked to the pedestrian crossing at the south-east corner of the intersection of Victoria Street and Peel Street. She waited to cross the road, from the eastern to the western side of Peel Street. At this time, Ms Louey effectively stood next to your truck.
8When the traffic light turned green, you began to move forward slowly. You entered the intersection and stopped to allow about 10 pedestrians to cross Peel Street. Among them was Ms Louey, who was moving more slowly than the rest of the pedestrians. The phase of traffic and pedestrian lights was a ‘D-phase’, which meant that pedestrians moving in the way and direction described are given an 8-second walk time, indicated by a green man, which is followed by a 20-second clearance time, indicated by a flashing red man. There is then a 7.5 second ‘solid red Man’ before a new phase commences. D-phase in total operates for an approximate 35.5 seconds.
9Roughly 10 seconds into this D-phase, you began a left-hand turn into Peel Street, during the clearance component of the phase. In turning, you took a wide-swing to the right to avoid the gutter, and moved across the pedestrian crossing. While moving over the crossing, the front passenger side of your truck struck Ms Louey. The impact of this contact knocked Ms Louey to the ground and she was dragged about six metres beneath your truck.
10As soon as you realised you had hit something, you brought your truck to an immediate stop. Several witnesses called 000. Ms Louey was taken by ambulance to the Royal Melbourne Hospital. Ms Louey passed away while at the hospital, as a result of the injuries sustained during the collision.
11You were co-operative with the police and spoke to them at the scene. Blood samples were taken from you and showed that you didn’t have any drugs or alcohol in your system, there was no evidence that you had been using your mobile phone and no evidence of fatigue that would account for why this collision occurred.
12At 3pm on the same day you were taken to Melbourne North Police Station. You were interviewed by police for around 4 hours and answered over 1000 questions. During the interview you told the police that you did not see the pedestrian you struck, that you were upset by what had happened and that you felt really sorry.
Gravity of the offending
13The offence of dangerous driving causing death is a very serious offence because it involves the death of another person. The seriousness with which parliament view the offence is reflected in the 10-year maximum penalty and also in the fact that it is defined as a category 2 offence under the Sentencing Act 1991. This means that pursuant to s.5(2H) of that Act, a custodial sentence must be imposed unless circumstances set out in paragraphs (a) to (e) of the subsection exist.
14By your plea you accept that you drove in a manner that was dangerous to the public. That is, you accept that your driving involved a serious breach of the proper management or control of your vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured. In my view, as I raised at the sentence indication hearing, I consider this to be a valuable concession on your behalf as you had, what appeared to me to be, an arguable defence.[2]
[2] DPP v Zogheib [2015] VSCA 334.
15It is clear that features that ordinarily aggravate the gravity of this type of offending are absent in your case.[3] You were not speeding, you were not intoxicated, you were not driving erratically or showing off. To the contrary in the lead up to the fateful moment, you had been driving in a careful and reasonable manner having negotiated that particular area without incident several times earlier in the same day. The offence of dangerous driving causing death can occur in a very wide variety of circumstances.[4] When considering the nature and gravity of your offending it is necessary for me to make an assessment of the gravity of your offending in the circumstances of your particular case not just by reference to factors of aggravation that are absent.
[3] R v Whyte [2002] NSWCCA 343.
[4] DPP v Neethling [2009] VSCA 116.
16Mr Duck you were an experienced truck driver, driving a large vehicle with a dog trailer on the back, in the middle of Melbourne, in an area busy with pedestrian traffic. In those circumstances, you would have been aware of the limitations of visibility and the heightened risk you imposed in dense pedestrian areas. Both your counsel, Mr Johnston and the prosecutor Ms Warren submitted that your offending falls towards the lower end on the scale of seriousness for offences of this nature. I accept this categorisation. I accept that you, in the moment, misjudged the circumstances you were confronted with. You proceeded through the intersection without seeing Ms Louey, who by that time was out of your view, and tragically you ran over her causing her death.
17Your culpability is entirely attributable to this momentary misjudgement. You were in a busy intersection that required your attention to be directed towards many moving elements. From my viewing of the CCTV footage you were at the intersection for only a matter of seconds before the collision. In all of the circumstances, I consider your moral culpability also falls towards the lower end of seriousness.
Victim impact
18In this case, I received two victim impact statements from Ms Louey’s daughter Maryanne Louey and Ms Louey’s son Wai Lam (known as William). They both convey their ongoing sadness, anger and the sense of unfairness they feel because their mother was taken before her time.[5]
[5] Exhibit B on the Plea.
19William described suffering great stress and anxiety and a bout of eczema that lasted for 6 months. He also described having difficulty sleeping. William saw his mother as a beacon of his identity, someone who steadfastly upheld her traditions and reinforced his heritage, with her gone he has felt lost.
20Maryanne described how her grief has continued, she cries constantly and she is unable to express in writing how much she has been affected by the loss of her mother, who meant everything to her. Maryanne spoke of how close she was to her mother living only a short distance away. She also said her mother was strong willed and determined to live a long, fit, active and healthy life. Maryanne described her devastation that her mother’s life was cut short.
21I acknowledge there is nothing I can say or do that might comfort or heal the grief and pain so obviously felt by William and Maryanne. I take into account the pervasive, profound and immeasurable loss they continue to suffer as a result of the loss of their dearly loved mother – Choi Yu Louey.
Plea of guilty
22As described above your case resolved at a sentence indication hearing earlier this week. Although your plea of guilty came just before trial, I consider in the circumstances, it has significant utilitarian benefit. The court has been spared the time and expense of a trial, witnesses were not required to give evidence at trial and were not cross-examined at committal. Most importantly grieving loved ones were not put through the uncertainty of the trial process.
23In addition, I accept your counsel’s submission that a plea of guilty during the covid-19 pandemic is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times.[6]
[6] Worboyes v The Queen [2021] VSCA 169.
24Mr Duck, I consider your plea to be a valuable one in the sense that you have what I consider an arguable defence. In these circumstances, I cannot increase the utilitarian value of your plea. However, I can and do take into account, the subjective factors that your plea of guilty demonstrates. These factors include your desire to facilitate justice, your acceptance of responsibility for your offending and as an indicator of the depth and degree of your remorse.
25I accept that your remorse is profound and genuine. It is not only evidenced by your plea of guilty but also your co-operation with police, your expressions of upset and sorrow in your record of interview, your expressions of significant remorse to your daughter,[7] and your friend Darrelle Holster,[8] and your chronic and debilitating reaction to the collision and death of Ms Louey. A comprehensive report was prepared by Mr Patrick Newton clinical and forensic psychologist and tendered on the Sentence Indication Hearing.[9] Mr Newton said the following;
At [22] Mr Duck described the collision of June 2019 as his “worst day ever”.. Specifically, Mr Duck said that in the aftermath of the June 2019 event, he had experienced symptoms of anxiety (trauma) and depression as well as a profound loss of confidence in himself and guilt for the death of the pedestrian. He attempted to continue working but found himself unable to continue driving. More generally, he has withdrawn from social activities and has been distressed to the extent of contemplating suicide.
And at [34] Mr Duck has found it very difficult to motivate himself to engage in positive activities or recreational pursuits. He seems to believe that he does not deserve pleasure or happiness and that were he to pursue such goals he would be showing a lack of remorse and contrition for what has occurred.
[7] Exhibit 4 on the Plea.
[8] Ibid.
[9] Exhibit 1 on the Plea.
26In these circumstances, I propose to allow a significant discount for your plea of guilty and I take into account your genuine remorse as a matter in your favour.
Personal circumstances background
27It is appropriate at this stage to describe your personal history. You are a 60 year old man, a father, and grandfather. You have no prior convictions.
28You had a tough upbringing. You are the youngest of 4 children, and were born into a turbulent home. You were raised in suburban Melbourne. Your father drank excessively, and was argumentative and aggressive, often arguing with your mother, which would lead to physical violence between them. Similarly, one of your brothers often physically fought with your father. You and your siblings experienced strict discipline, and corporal punishment. One of your three siblings, a brother, was seriously involved in crime, and that caused you and your family significant stress.
29You finished primary school and went on to finish up to year 10 at Tottenham Technical School. You found the academic side of school extremely challenging, but really enjoyed the ‘hands on’ subjects, like wood-work. The trouble you had with learning led to difficulties with your classmates, and you were often bullied and had few friends throughout school. You report having been involved in several childhood fights that resulted in you losing consciousness.
30Upon finishing school you worked in a variety of manual jobs. Primarily, for most of your life, you have worked either in trucking, or as a landscaper. No matter what the job, you have always worked hard, and have been described as having an ‘extraordinary work ethic’. Although manual labour is the only type of work you have known, you have expressed a desire for change, because of the physical toll these roles have taken upon your body. Nearly ten years ago you completed a course in Aged Care, but never sought employment in that field because you understood that those jobs would require you to write reports, and that was too difficult for you at your current reading and writing level.
31It was this that prompted you to undertake a neuropsychological assessment in 2013. The full extent of the difficulties you have had with learning and matters of the mind came to light, when you attended upon Dr Alpitsis.[10] You were found to be in the low end of average intelligence, and as having endured longstanding dyslexia, as well as likely dyscalculia. This goes a great way to explain the difficulties you had while you were at school. Despite a list of recommendations designed to assist you to manage your reading and writing difficulties you remained employed as a truck driver.
[10] Exhibit 2 on the Plea.
32In terms of relationships, in 1980 you met Dana, who you went on to marry, and with whom you shared the only significant romantic relationship of your life. Together you had your daughter Kirsten. You had a strong bond with your wife and relied on her to a great degree. You were devastated when Dana left the marriage in 2008. Shortly after separation Dana passed away and your world fell apart. You experienced significant depression for which you required treatment and medication. In and around this time, you also lost your mother to pancreatic cancer, as well as both of your parents-in-law. This period of life represents a time of enormous grief and hardship, although you have reported that you began to heal after 12, maybe 18 months, and did so without medication.
33This appears to be contrary to the opinion of the neuropsychologist Dr Rubina Alpitsis who described you as suffering from depression in 2013 for which you were medicated with pristiq. It is also contrary to what your daughter has mentioned in her letter to the court. Kirsten describes that you have battled with poor mental health for over 10 years, struggling with depression despite being on the highest recommended dose of anti-depressant medication. Notwithstanding your difficulties she also described that you are the kind of dad that will always be there to help, no matter the time, that you are a ‘kind, gentle and softly spoken man’ and that she is proud to call you her father.
34You have remained single since the separation and subsequent death of your wife. At the time of the offending you were living alone but had significant contact with your daughter upon whom you were, and are, heavily reliant. You were working as a truck driver despite significant physical ill health involving a bad back and also vascular and angina issues.
35Since the collision in June 2019 you have not been able to return to your work as a truck driver. You were able to do some work landscaping but you have not been able to sustain this employment. As I understand your current situation you are living with your daughter and grandson, supporting yourself financially from drawing upon your superannuation. You continue to be heavily reliant upon your daughter for assistance with a range of daily activities as well as for emotional and mental health support.
Mental Health
36As I mentioned earlier a comprehensive report was prepared by Patrick Newton, clinical and forensic psychologist and tendered during the course of the sentence indication hearing. Mr Newton had reviewed the police summary and charges together with a support letter from Ms Sara Mussa psychologist and a neuropsychological report from the Alfred Hospital authored by Dr Alpitsis. In addition, evidence previously given by Mr Newton at an earlier sentence indication hearing was relied upon by your counsel Mr Johnston.
37Mr Newton gave the following opinions;
(a) At the time of his assessment you were suffering clear symptoms of both traumatic anxiety and depression and that these symptoms had caused you noteworthy distress and are derived from the collision of June 2019.
(b) Your symptoms were sufficiently severe to meet the DSM-5 criteria for post-traumatic stress disorder. Post-traumatic stress disorder is a severe and significant psychological condition and your symptoms were at a moderate level of severity that is, you fall fairly and squarely within the diagnosis.
(c) Your traumatic symptoms have been made more intense as a result of both your pre-existing depression and your dyslexia and learning disabilities.
(d) Despite medication at the maximum dosage and compassionate and skilled medical and psychological intervention your symptoms have persisted such that your depression can be described as treatment resistant.
(e) Your intellectual problems go beyond being a little below average as you have actual verbal processing difficulty that has had pervasive and significant effects since you were a child. The impact of this is to severely impact the delivery of treatment such that usual therapies are not appropriate.
(f) Triggers of PTSD can be external and internal. In a custodial setting external triggers are not entirely removed. They could be in the form of a news report on TV, a conversation with other prisoners, a loud noise or a diesel motor. Internal stimuli would also be a very real issue particularly in isolation where you would be in effect left alone with your symptoms without being able to access self-help material or treatment.
(g) If you were placed in a custodial setting there would be a significant risk that your mental state would deteriorate for several reasons - 1. because you would have been removed from your supports, 2. there are no trauma specific treatment programs in custodial settings, 3. psychosocial interventions as are available are either limited in scope or rely upon the use of written workbooks, 4. you would be exposed to significant and sustained increase in stress and 5. you would likely internalise the punitive aspects of sentencing in a self-punitive inner dialogue that would itself intensify your psychological distress.
(h) In light of these considerations incarceration would substantially and materially entail a greater risk to your mental wellbeing and the burden of imprisonment is likely to be substantially and materially greater upon you than it would be for a prisoner who is not afflicted with your trauma and other psychological challenges.
38I accept Mr Newton’s opinions. They are consistent with and supported by the reports from Dr Alptsis, Geoffrey Burrows,[11] and Sara Mussa.
[11] Exhibit 3 on the Plea.
Onerous conditions in custody due to covid
39I take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience.
40This issue was raised at the sentence indication hearing particularly in the context of the impact that isolation and quarantine would likely have upon your serious mental health conditions. Mr Johnston, on your behalf, tendered a document from the Department of Justice and Community Safety entitled Statement of Conditions – Protective quarantine, transfer quarantine, suspected case quarantine and confirmed case isolation.[12] This document confirms that the effects of the pandemic for prisons are serious, ongoing and fluid. This is particularly so in light of community outbreaks of covid-19. I accept that the conditions in quarantine as described in that document would be particularly onerous for someone with your mental health diagnosis and learning limitations.
[12] Exhibit 5 on the Plea.
Delay
41Delay is an important mitigatory factor I take into account in your case. This is particularly so in light of the ongoing impact the court hearings have had upon your mental state. Mr Newton gave evidence that the legal case or prosecution has had the impact of rekindling your trauma and has acted as an ongoing stressor. It was also his view that whilst the case is unresolved and continues to hang over you, your treatment is not likely to be effective and your symptoms will not go into remission. I accept Mr Newton’s evidence in this regard. Your case has remained unresolved for 3 years. There have been numerous listings and unsuccessful attempts at resolution. Your matter has been caught in the backlog of cases that have plagued the court as a result of the covid-19 pandemic.
42I also accept that since your arrest and since being charged in 2019 you have had to live with the worry and strain of this case and it has caused you enormous anxiety and stress. Since this time, you have not known what your future would hold in terms of your liberty.
43The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. You have committed yourself to counselling. I accept that you are unlikely to reoffend in the future both because you have no prior convictions and because you have not been charged in the last 3 years since June 2019. In addition you have thoroughly engaged in counselling and have a supportive family.
Category 2 offending
44The charge of dangerous driving causing death is a category 2 offence. This means that s. 5(2H) of the Sentencing Act operates in your case and provides that a court must make a custodial order for imprisonment, other than an order for imprisonment and a community correction order – unless I am satisfied that there are special reasons. These special reasons are listed in subsections 5(2H) - (a) to (e). Your counsel Mr Johnston, submitted that both subsection (a)(ii) and (e) apply in your case. Ms Warren for the prosecution submitted that the very high threshold required for each of these subsections was not met.
45Given the circumstances of your case and in particular the evidence from Mr Newton I am satisfied on the balance of probabilities that pursuant to ss. (a)(ii) you have impaired mental functioning, that is, you suffer from post-traumatic stress disorder, to such an extent that it would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
46Pursuant to ss. 5(2H)(e) I find that there are a combination of substantial and compelling factors in your case that are exceptional and rare the cumulative impact of which would justify departure from s.5(2H). In summary these factors include,
· your offending is at the lower end of the scale of seriousness for this type of offence, your low moral culpability,
· your PTSD and poor mental health,
· the challenges of treatment in the context of your particular learning disabilities and issues,
· the desirability of not interrupting your treatment, the harsh conditions in custody as a result of covid 19 pandemic,
· the delay which has caused this matter to hang over your head exacerbating your poor mental health condition for 3 years,
· and has allowed you to demonstrate your commitment to treatment and rehabilitation,
· your genuine and extreme remorse,
· your valuable plea of guilty entered during a time when the court is crippled by the backlog of cases caused by the covid 19 pandemic and
· your lack of prior convictions.
47Having found that special reasons apply I must also consider the relevant sentencing principles that must be applied in your case. Absent exceptional circumstances for a driving offence that results in the death of another person a substantial custodial sentence will usually be required to satisfy the need for general and specific deterrence, community protection and just punishment. For all of the reasons I have listed above in relation to s5(2H)(e) I consider exceptional circumstances do exist that justify the imposition of a penalty other than imprisonment in your case.
48I have taken into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991, where relevant to your case. Mr Johnston in his concise and helpful submissions referred to several recent cases of dangerous driving causing death, primarily from this court.[13] I have had regard to these cases and have taken into account as far as possible the current sentencing practices for the offence of dangerous driving cause death, to which you have pleaded guilty.
[13] DPP v Liang [2022] VCC 170; DPP v Parker [2022] VCC 681; DPP v Baskerville [2022] VCC 776; DPP v Di Fuccio [2022] VCC 949; DPP v Marlow [2021] VCC 1004 and 956; DPP v Graham [2021] VCC 1585; DPP v Nasser [2020] VCC 1660; DPP v Ballan [2020] VCC 883; R v Lu [2022] VSC 258.
Disposition
49Mr Duck, as I said at the start of these remarks you have been assessed as suitable for a Community Correction Order and I propose to order that you perform such an order.
50In relation to the charge of dangerous driving causing death, you are convicted and you are placed on a Community Corrections Order for a period of 3 years. The conditions of this Community Correction Order include
(a) 200 hours of unpaid community work over that three-year period;
(b) Assessment and treatment for mental health
51I will offset 100 hours of community work against the treatment.
52In addition to the conditions that I have imposed, there are standard conditions that you must comply with. The first and foremost is that you are not to commit any offences punishable by imprisonment during the 3 year period of the Community Correction Order. You need to report within two working days after your release to your nearest Corrections office, which is the Melton Corrections office.
53You are required to advise your supervising corrections office of any change of address of where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the corrections officer. You cannot leave the state of Victoria without their prior permission.
54Mr Duck, if you reoffend you will breach the Corrections Order. You will also breach the Correction Order if you do not comply with the conditions I have imposed and the standard conditions I have just advised you about.
55I can only place you on the Corrections Order if you agree – do you understand what is involved in the Community Correction Order?
56OFFENDER: Yes.
57HER HONOUR: Do you consent to the order in the terms I have described?
58OFFENDER: Yes, I do.
59HER HONOUR: Pursuant to s6AAA of the Sentencing Act if not for your plea of guilty I would have sentenced you to a total effective sentence of six months imprisonment with a Community Correction Order in the same terms and conditions as I have imposed today.
60Pursuant to s.89(2)(a) of the Sentencing Act, I order that from Monday 11July 2022, that your licence will be cancelled and you will be disqualified from obtaining another licence for a period of 18 months and that is mandatory – I have to do that and that is the minimum period that can be imposed.
61Those are the matters and you are welcome to take a seat. We have got an order that has been drafted that I will get you to sign.
62Ms Louey and Mr Nicola, I just want to thank you for attending. I hope that being part of the proceedings has helped you to understand the process. Again, I acknowledge your devastating loss and hope that at least you can get some closure as this part of things has finally resolved.
63Thank you very much to the parties for the way that the matter has been conducted and dealt with. So we will adjourn.
64MR JOHNSTON: As Your Honour pleases.
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