Director of Public Prosecutions v Duggan
[2023] VCC 1148
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
CR-23-00275
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN DUGGAN |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Ballarat |
DATE OF HEARING: | |
DATE OF SENTENCE: | 30 June 2023 |
CASE MAY BE CITED AS: | DPP v Duggan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1148 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | |
For the Accused | Ms M. Bowler |
HIS HONOUR:
1Shaun Gordon Duggan, you have pleaded guilty to one charge of driving in a manner dangerous causing death. That crime carries a maximum penalty of 10 years' imprisonment.
2Because of the crime I am obliged to cancel any driver's licence you hold and disqualify you from obtaining a further licence for a period of 18 months.
3In any event, you are now 45 years of age. You pleaded guilty at a reasonably early opportunity and I am satisfied that that plea of guilty is accompanied by very deep and very profound remorse. I think this collision has not only caused massive grief to the family of the deceased man but has effectively and I accept this, potentially ruined your life as well.
4You must also get the utilitarian benefit of the plea of guilty. It has saved the family of the deceased man and your own family indeed from going through the ordeal of a criminal trial.
5These are situations where the error or omission on your part is of a minor nature with catastrophic results. On occasions these matters are fought out before a jury. You have elected not to do that in circumstances where it may possibly have worked for you. I take that very much into account in these circumstances as part of your genuine remorse and the psychological damage you yourself as well as the family of the deceased man have suffered.
6I am also fully aware that this plea of guilty comes during the time of Worboyes which means that because of the backlog in the courts pleas of guilty are to be encouraged significantly.
7I also take into account there has been a delay, not that it has been an inordinate delay. There has been an extended period of time, some 18 months or whatever it is, as I understand it, where you have been effectively awaiting your fate.
8The circumstances here are that general deterrence has to play a very significant part in all of this and specific deterrence, as far as you are concerned, is meaningless. When a member of the community sees the manner in which this came about I think denunciation does not play such a great part and to a large extent you have suffered extra-curial punishment in what has happened to you psychologically.
9As I indicated yesterday I think the consequences for you are inevitable but I will go through this in a little bit of detail although I will try and keep it as short as I can.
10You have no criminal history and you have never lost your licence although you do have some prior speeding matters.
11A summary of the offending is that at approximately 10 to six in the morning of 29 November 2021 a motor vehicle collision occurred at the intersection of the Bacchus Marsh-Balliang Road and Reddens Road in Balliang where the speed limit was 100 kilometres per hour.
12It occurred when your vehicle was travelling in a southerly direction along Reddens Road, entered that intersection against a give way sign and collided with a Toyota Camry. The force of the impact caused both vehicles to roll and as a result of the collision the driver of the Camry, Mr Jamie Stomilovic, sustained fatal injuries and died at the scene.
13The circumstances surrounding it were that you afterwards said that you had entered the intersection against a give way sign. It is important to note that it is a give way sign, not a stop sign. That you had looked and not seen the other man coming.
14People seem to think that when there is a collision that the person must not have looked. I understand the medical and psychological material is that sometimes you can look and not actually register that there is another vehicle there.
15In any event, you have pleaded guilty and I accept your version of events and I think in this particular situation your moral culpability and I am certainly not talking about the consequences but the moral culpability is very much at the lower end and I will come to that again in a moment.
16You lived approximately 3 kilometres from the collision location. Each of you held a full driver's licence. You were the only person in your vehicle and I will refer to him as Jamie, was the only person in the other vehicle.
17A blood sample was taken from you. There were no alcohol or drugs found. At the time Jamie was 28 years of age.
18I do not have to go into the details of the actual area itself. It is two country roads that intersect with a give way sign. As I understand it, as you are coming along Reddens Road the grass paddocks are overgrown. There is a visibility issue for drivers to see vehicles approaching along the Bacchus Marsh-Balliang Road from either the east or the west.
19This is not a situation where you went over rumble strips or anything along those lines. Each of you were well within the speed limit. There is no suggestion of there having been alcohol or drugs involved. The matters that one takes into account are succinctly outlined in the decision of White and also the decision of Neethling when it points out that this crime almost inevitably leads to a sentence of imprisonment.
20When one looks at, firstly, the extent and nature of the injuries inflicted, well we are dealing with death and it does not get any worse than that. In terms of the number of people put at risk there was simply Jamie. Degree of speed, no. Degree of intoxication or substance abuse, no. Erratic driving, no. Competitive driving or showing off, none. Length of the journey during which others were exposed to risk, about 50 yards. Ignoring of warnings other than the give way sign, none. Escaping police pursuit, none. Degree of sleep deprivation, none. Failing to stop afterwards, none. Failing to render assistance, none.
21Once the dreadful accident had occurred you did everything you could. You flagged down a passing motorist who was able to ring Triple 0. You then, as I understand it and from what I can gather without going into the detail of it, this is where your post-traumatic stress disorder comes from and it is understandable. You attended to the deceased man. You endeavoured to stop the bleeding from his head which was profuse, as I understand it. Again as I understand it, you took off your own shirt and were trying to attend to him.
22I can fully understand that that is something that you think about. So the psychological reports tell me and I accept, you think about every day. You operate on about three hours sleep a night. You wake up having nightmares seeing all this in front of you again.
23This is a situation which, as I indicated yesterday, is absolutely dreadful. Half a second either way and no one would be here. It is almost impossible for a family not to ruminate on that from both your points of view as to how this can happen.
24The law is powerful upon this and there are many decisions on it but in The Queen v Browne in 2023 and many other matters such as The Queen v Liu. Neethling itself that I just referred to.
25The circumstances in this state now are that there is mandatory sentencing in regard to this crime. It is disturbing that it is so because it is a crime which can occur over a very, very wide range of circumstances. Gaol is the only sentencing option unless there are what can be described as special circumstances.
26They do not exist in your particular situation which means that it has to be gaol. It cannot be a combination with a community corrections order. I am not going to go into the detail of all that but it is my view that the mandatory sentencing provisions mean that for you there is no other option than gaol. I then have to determine the length of that gaol sentence bearing all these factors in mind.
27At the scene you said that you simply did not see him. In your record of interview you said, 'I was driving to work and I didn't see the car. I failed to give way and the accident occurred.'
28You accepted it completely and you have never, as I understand it, not accepted responsibility for what occurred.
29What has happened, again as I think I said yesterday, is that two hardworking very much loved men on their way to work early in the morning have collided. You caused that collision. The other man, Jamie, played no part in that at all. The result of just a few moments of inadvertence have resulted in dreadful, dreadful consequences.
30Yesterday and I am quite prepared to say this, one of the most powerful half hour or hours or so I have experienced in a courtroom was listening to Jamie's family read out their victim impact statements. They did not do what often occurs where they launch into an attack on the accused. They simply very succinctly and very powerfully described the grief and the devastation that offending such as this causes.
31It is easy to understand why the Court of Appeal in this state takes such a very serious view of such offending. I am not going to quote from those impact statements. I said to the family yesterday they were extremely powerful. Everyone who matters has heard them. I have taken them very much on board. I sat here yesterday and I have a perfect view of the courtroom. While those victim impact statements were being read out I saw the accused cry. I saw you cry. I saw the accused's family cry. Me repeating it is not going to help anybody.
32The consequences are devastating and there is just simply no other way of describing it.
33I then turn to matters personal to yourself and they are, very helpfully if I might say, set out in the outlines of submission by your counsel.
34It points out your age and points out that at the scene you tried to help Jamie by holding a shirt against his head. You yourself were taken to hospital following the collision. You were treated for a fractured rib. You have never lost your licence and you have never been in an accident before.
35You went to the local primary school. You did not have any academic or behavioural issues at school. You completed a horticulture apprenticeship. You lived in the family home until you were 22. You went to Sydney. You worked up there. You have always worked in fact.
36You have resided with various relatives over the years. Working as a builders labourer and have worked in labouring and civil construction for the past 25 years.
37I interpolate at this stage that there are very powerful references from your employers and the people that you work with speaking very, very highly of you. Saying that you can be trusted with all sorts of matters and are basically a very decent, very hardworking man.
38You met your current partner some 30 years ago and have been in a relationship for the past seven years. You reside in Bacchus Marsh and you have a five year old daughter.
39Because of the inevitability of the sentence I impose I take into account, insofar as you are concerned, that you undergo that sentence separated from your child. I do not know what is going to be said to her about where you are. It is going to be massive for you. It does not get to the stage of Markovic exceptional circumstances but I understand that any period of imprisonment will weigh heavily upon you. It is going to be a struggle with the family to maintain it whilst you are actually in prison.
40You described to your counsel how when you told your father what had happened and what you had done it was the first time in your life you had seen him cry.
41In any event, within weeks of this occurring you were attending counselling. You were getting psychological treatment and you have done everything you can.
42There is a letter on file here from you apologising to the family of the victim. I do not know whether they have seen that so I will not read it out but it is a very genuine expression of remorse and indeed your counsel yesterday told the family of Jamie that you hoped that you being imprisoned may give them some relief from the agony that they have been going through for the last 18 months. Whether or not that is so is problematic but it certainly indicates, in my view, your very genuine remorse and acceptance of what you have done.
43Because of all this you meet the diagnostic criteria for complex post‑traumatic stress disorder. It is not the same as having that disorder beforehand so it does not go to the seriousness of the offending but it seems to me that in these circumstances it goes very much to the other factors that are involved in sentencing.
44So far as your rehabilitation is concerned I think the chances of that are excellent, at least in terms of not reoffending. Whether you can ever recover your mental health is an entirely different issue. You do not believe you can and it seems pretty clear that neither do the professionals who have examined you. You, I accept, will live with this in all probability for the rest of your life.
45On the other hand, as I am sure the members of Jamie's family are thinking, he does not have a life to deal with anything anymore and that is the dreadful balancing act the sentencing judge in these circumstances has to deal with.
46Insofar as the report from the psychologist, Ms Jackson, who is known to me I will not go through that in detail other than to outline a few things which do relate to your mental condition.
47You had a cousin who was also a very good friend of yourself and he died in a motorbike accident in 13. He hit a gutter and broke his neck. You recall suffering great grief from that. It appears clear that your experiences at the scene of Jamie's death have been a trigger to a lot of that coming back into your memory and psychological existence.
48As a kid you played footy and cricket. You had an obsession for horses. I have got references from the sporting club saying how good you are. I have got references saying how well you have done in the community. That you are a father and as I said before, a very hard worker.
49You have got no history of mental health problems. You have got no drug problems. You have got no alcohol problems.
50The situation here is that where the collision occurred and I was distressed to hear what the family had to say about the desecration of the memorial that they have put up. That is a dreadful thing for them to have to live through. In any event, that is very close to where - well it backs onto your property as I understand it. You essentially cannot drive through the area now or you get anxiety and experience sweating, shaking hands and it just has made a mess of you.
51You told your psychologist,
'He continues to think about the accident daily. He has flashbacks of the deceased man. His sleep is often disturbed with night-time wakings and problems getting back to sleep. His thinking is dominated by feelings of guilt and sadness for the victim and his family and is something that he does not think he will ever resolve.'
52So it is not just about yourself and your family. I accept that there is very, very deep concern for Jamie's family.
53She goes on to say, 'He has been receiving psychological treatment since'. I do not need to go into that.
54She said, there has been a rapid deterioration in your mental health following the collision. Your symptoms, initial acute stress reaction and then it becomes clear that that has developed into post-traumatic stress disorder. I do not have to go through the rest of it.
55It is clear that a term of imprisonment will weigh very heavily on you because of those mental experiences and your mental state but in my view, that does not give rise to the exceptions contained within the mandatory sentencing. I have no option in terms of what I do.
56Ms Jackson says,
'In the absence of any forensic history his remorse and guilt and Mr Duggan's demonstrated engagement in counselling services indicates that he remains at a very low risk of reoffending. While he might never resolve this trauma his rehabilitation will assisted by clinical support.'
57That is in place and there is not much else I can do about that.
58The psychologist, Mr Sullivan, said that each time basically he tried to talk to you about this you just broke down into tears and almost could not communicate with him. He is of the view that you will never recover from this.
59As you, yourself, have said and I quote you, 'It'll never be over'.
60He said,
'I consider Mr Duggan remains profoundly impacted by the death of the driver. He remains distressed and unable to regain optimal psychological health with continuing flashback type reactions to thoughts of the motor vehicle accident, the intersection and the driver who he attempted to assist in the immediate aftermath of the motor vehicle collision.'
61He goes on to say that you will need specialist treatment for an indefinite period of time.
62As I mentioned, there is an apology and it is a very sincere one, I have got no doubt, directed towards the family. I am not aware if they have had that read to them so perhaps I should not do that.
63There is a letter here from your partner who just describes since this has occurred and many of the other references and I have read them all a couple of times so I do not want people to think I have not read them. Same as I read the victim impact statements all again last night.
64Your partner says,
'He was a shell of the person he was before the accident. There are no jokes. Doesn't smile. The guilt and remorse he felt and still does was so obvious he didn't have to verbalise it.'
65She said that she now has to go to functions by herself. That you will not go out. You have told her that you are dreadfully remorseful of the accident as indeed you have to many others. If you could somehow change it you would.
66That shows throughout all the references here. That a formally very strong member of his community and easy going person is now just simply a shell of himself. She said at the end of her reference,
'Shaun is a good person who ended up in a tragic situation that has affected our lives forever. None more so than Jamie's loved ones.'
67I do not really, I think, need to go any further into that. There is a reference here that says, so far as you are concerned,
'He is in pain every single day for the family of the deceased and for his own family who are also hurting. He would give anything to be able to take away their pain and is so remorseful for the accident. He barely holds it together most days and I feel he only does for his daughter, Ruby and partner, Lauren.'
68That is from your sister. She said, 'This is far from the brother that I grew up with.'
69So the consequences for you have been dreadful.
70The consequences for Jamie and Jamie's family have been just utterly tragic and dreadful. The victim impact statements describe his habits, his laughter, his relationship with his mother. It was indicated the other day his mother's victim impact statement should have been taped and played to every road trauma course that exists in this state as to what you do if you kill somebody in these circumstances.
71It described his adventures. He was just a young man with his whole life in front of him. Very much loved and it is very clear from all the material, loved by many. Not only his family but basically everybody and he has gone. There is absolutely nothing I can do to restore that. There is nothing you, Mr Duggan, can do to restore that.
72I am obliged, as a matter of law, to impose a prison sentence. That is not going to change anything. You yourself have said you hope it gives Jamie's family some closure. I hope that is the case as well. Obviously in the situation here where the culpability is at the lower end and I am not talking about consequence, I am talking about moral culpability, that sentence can be lower than would otherwise be the case.
73If you had gone into a police station and not made these admissions. Denied it. Made up all sorts of stories about the sun in your eyes and all sorts of things like that and been convicted by a jury the result here would have been a very, very different one indeed.
74However, I take all those matters into account. All the references on behalf of each you. All those very, very powerful victim impact statements but there is not much this man can do to fix any of this. All I can do is a pass a sentence according to law as I perceive it.
75Accordingly, on the charge of dangerous driving causing death you are sentenced to be imprisoned for a period of eight months.
76I say pursuant to s6AAA of the Sentencing Act had you pleaded not guilty to this and tried to deny it, it is impossible to know because that is just simply not what happened and you could not have denied it but there would have been a head sentence of years. I will simply leave it at that.
77That is the benefit that you obtain and hopefully there is closure for everybody in this. I do not know if that is what occurs but there is not much else we can do. There is no pre-sentence detention involved?
78MR MOORE: No.
79HIS HONOUR: But 6AAA, that is all I am going to say about it. It is meaningless otherwise. The licence is cancelled for 18 months. Again, what that achieves is beyond me. It just simply stops him working when he is released but in any event, that is as much as I can do.
80All right. So in those circumstances that is the sentencing remarks. Those sentencing remarks will be, over the next week or so, reduced to writing and will become available later. As I indicated yesterday, I do not write things out. I just sit here and talk but that will become available.
81All right. So there are no other orders I need to make?
82MR MOORE: No, Your Honour. That completes the matter.
83HIS HONOUR: No. All right. Yes, you can go now. Thank you. Yes, thanks John.
- - -
0
0
0