Director of Public Prosecutions v Ellett
[2016] VCC 1841
•30 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01490
Indictment No. G11912692
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STANLEY BARRY ELLETT |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 November 2016 |
| DATE OF SENTENCE: | 30 November 2016 |
| CASE MAY BE CITED AS: | DPP v Ellett |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1841 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dangerous driving causing death – dangerous driving causing serious injury – adjourned undertaking
Legislation Cited: Sentencing Act 1991; Crimes Act 1958, s319(1A)
Cases Cited:Stephens v R [2016] VSCA 121; R v Whyte & Ors (2002) 55 NSWLR 252; DPP v Nicolakopoulous [2015] VCC 1498; DPP v Warrick [2016] VCC 1134
Sentence:With conviction, released and the proceeding is adjourned for a period of 18 months with undertakings.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Darryl Brown | Office of Public Prosecutions |
| For the Accused | Mr Robert Richter QC | Robert Richter & Associates Pty Ltd |
HIS HONOUR:
Introduction
1 Stanley Barry Ellett, you have pleaded guilty to:
·One charge of driving a motor vehicle in a manner that was dangerous to the public, resulting in the death of your daughter; and
·A second charge of driving a motor vehicle in a manner that was dangerous, causing serious injury to your wife.
2 Dangerous driving causing death carries a maximum penalty of ten years’ imprisonment. Dangerous driving causing serious injury carries a maximum penalty of five years’ imprisonment.
The incident of driving
3 You were driving your Ford sedan along Bunyip River Road in an easterly direction toward the point where it intersects with Thirteen Mile Road in an area known as Vervale. Your wife, Pamela, was sitting in the front passenger seat. Your two daughters, Emily and Rochelle, were sitting in the rear seat. Emily was seated on the passenger side.
4 John Clay (“Clay”) was driving his Toyota LandCruiser and trailer in a southerly direction on Thirteen Mile Road towards the same intersection.
5 The book of photographs show signs erected about 200 metres west of the intersection on both sides of Bunyip River Road warning drivers approaching the intersection that there were “Stop” signs erected at the intersection. The photographs also show signs erected about 16 metres west of the intersection on both sides of Bunyip River Road.
6 You did not see the warning signs or the “Stop” signs. You entered the intersection at about 95 kilometres per hour. Clay entered the intersection at about 97 kilometres per hour. You did not see Clay’s motor vehicle as it approached the intersection and he did not see your motor vehicle as it approached the intersection.
7 Clay’s motor vehicle collided into the centre of the passenger side of your motor vehicle, with devastating results. Both vehicles were extensively damaged as is demonstrated in the photographs.
8 Emily died as a consequence of injury she sustained, and Pamela was seriously injured.
9 I do not propose to summarise any of the other facts contained in the prosecution plea opening except to note that the prosecution accepts that you did not see the relevant signs before you drove your motor vehicle into the intersection.
Your plea
10 You are a 75-year-old married man who has pursued the occupation of dairy farmer for the whole of your adult working life.
11 There were seven children born of your marriage; five of them survive. Tragically, one of your daughters committed suicide in 2000 and Emily died of the injuries she sustained in the incident.
12 Your life has not been free of other tragedy. You lost your mother when you were eight years of age. Your sister committed suicide when she was in her 20s. Both of those tragic events left you with long-lasting wounds which were re-opened by the incident and its aftermath.
13 You were born and raised in Pakenham. You were born into a farming family, which, no doubt, led you into farming yourself. You completed your secondary education successfully.
14 The eleven character references are a testament to your character and standing in your local community. I do not propose to summarise them except to borrow some of the words composed by your friend, Graham Osborne, who said, “I can unreservedly advise that Australia would be a better place if it had more Barry Ellett’s”. That strongly worded statement resonates volubly in all of the other references.
15 Your daughters, Natalie Dunne and Kylie Dobson, prepared Victim Impact Statements. They read them in open court. They were visibly overcome as they read their statements about the loss of their sister and speaking in the most admirable, devoted and loving terms about you and the outstanding father that you have been to them.
16 I have no doubt that there are very many people in the community, if not the majority of people, who are just like you. The reasons why judges do not see them in a court room is because they are decent, honourable and law-abiding people. You are, undoubtedly, an outstanding husband, father and friend and someone who has worked outside your own life to provide assistance to those who have been in difficulty. Many of the references speak of just that sort of effort undertaken by you and the admiration in which you are held for being prepared to work outside your own life gratuitously for the benefit of others.
17 Sentencing you, in some ways is difficult, but in another way, not so difficult. The prosecution does not seek a custodial sentence and your counsel submitted that a custodial sentence would be inappropriate. It is a conclusion which I share.
18 That is the part which is not so difficult, but the difficult part is that, in almost all of the reported cases, there is a demonstration that a custodial sentence is appropriate for this level of offending.
19 I now propose to set out why it is that I think your circumstances are exceptional and easily distinguishable from those other reported cases.
20 Your failure to see the warning signs and then the “Stop” signs was as a result of momentary inattention. Unlike some of the reported cases, there is a complete absence of any aggravating circumstances in how you drove your motor vehicle leading up to and concluding with the incident.
21 Your moral culpability is at the very lowest end. I note for example that in Stephens v R [2016] VSCA 121, the Court of Appeal cited the judgment of Spigelman, CJ in R v Whyte & Ors (2002) 55 NSWLR 252 and in particular, the aggravating factors which the Chief Justice enumerated at paragraph 23. None of those were present in your driving of your motor vehicle at any time up to the occurrence of the incident.
22 Furthermore, the Court of Appeal in Stephens observed that offending by a person who has knowledge of the risk associated with the particular driving will ordinarily be judged to be more blameworthy than offending by one who was without that knowledge. The Court observed that the degree to which particular consequences of an offender’s acts were, or should have been foreseen by him or her, will inform the question of moral culpability.
23 I do not think I need say more than what is now known about your driving. Your momentary inattention was the cause of you not seeing the warning signs and the “Stop” signs. You had, therefore, no knowledge of the risk of impending collision with the other motor vehicle. That momentary inattention meant that you did not foresee the outcome of entering the intersection.
24 The sentencing principle of specific deterrence plays no role in the sentencing of you. You have an unblemished record, and indeed as an individual, an outstanding record as a family man, friend and significant contributor to your community.
25 The sentencing principle of general deterrence must be given some weight because of the prevalence of death on our roads.
26 The other relevant principles which must be given weight are the community’s denunciation of your conduct and the imposition of just punishment.
27 Against the application of those sentencing principles are factors which must moderate the sentence very significantly.
28 You pleaded guilty at the earliest conceivable point in time. By taking that step, you saved the witnesses the trauma of a trial and saved the cost of a trial.
29 You have, unquestionably, shown remorse and it is profound. You are likely to carry the blame for the death of your daughter, and the significant consequences of the injuries suffered by your wife, for the rest of your life.
30 The level of your remorse is demonstrated in some of the references by your plea of guilty and the assessment undertaken by Mr Newton, clinical and forensic psychologist.
31 You are a person of good character. I will say no more about that except to repeat my summary of the Victim Impact Statements of your daughters and the references of your friends.
32 The extra-curial punishment you have suffered can only be described as enormous. I will say no more about that, except to repeat the fact that you have lost a daughter and have seriously injured your wife and will forever carry the burden of blame for what occurred.
33 It is hard to imagine a harsher result for a parent in losing a child who is loved and cherished, and for you, it is even a harsher result, because it was your driving which led to that loss.
34 Furthermore, Pamela suffered significant injuries requiring extensive medical and hospital treatment. She is disabled and requiring your assistance. This is also part of extra-curial punishment which you have suffered.
35 According to Mr Newton, your deep emotional response to the incident and its consequences, put you at risk of suffering a post-traumatic stress disorder or a major mood disorder unless you obtain appropriate treatment.
36 I accept that, although you had suffered an emotional response to the loss of your mother, sister and your daughter, you overcame that in the best way you could. You got on with your life until these events occurred. They have, materially, contributed to the psychological state you now find yourself in which may worsen if not abated by treatment.
37 It is odd to speak of your prospects of rehabilitation, considering that you have an unblemished record in all respects. I can conclude, with confidence, that you are not the sort of person who is ever likely to offend in a criminal sense but I am obliged to address those prospects.
38 On all of what I know of you, I am confident that there is no prospect of you engaging in any offending conduct of any kind; therefore, there is no question that your prospects of rehabilitation are other than excellent.
39 I have resolved, after giving proper consideration to the submissions made by the prosecution and your counsel, that you will not be sentenced to a term of imprisonment. I do not doubt, in any event, that the burden of imprisonment at your age and carrying, as you do, the psychological impact of the consequences of the incident, would be extremely heavy.
Ultimate disposition
40 The prosecutor submitted that I should convict you and then release you on a community correction order. I ordered that you be assessed. The assessment was conducted on the day of the plea. You have been assessed as suitable for such a disposition. It is the view of the assessor that the only condition which should attach to a community correction order is supervision pursuant to s48E of the Sentencing Act 1991. Whilst I am under no obligation to abide by the assessment, I accept the assessment that no other condition should be attached to a community correction order.
41 Your counsel submitted that I should adjourn this proceeding, with or without conviction, pursuant to s72 of the Sentencing Act 1991.
42 The prosecutor submitted that to adjourn the proceeding will be to understate the seriousness of your offending. I will interpret that to mean, not so much that it would be manifestly inadequate, but moreso, that adjourning the proceeding is inconsistent with the acknowledgement of the objective seriousness of the offences in the context of the available maximum penalty.
43 Additionally, I understood that submission to include the fact that a community correction order is punitive and, in effect, a substitute for the former option of a suspended sentence. That appears to be so, because it is clearly stated in s36(2) of the Sentencing Act 1991.
44 I infer from the submission that a community correction order, by its character, fulfils all of the sentencing purposes which I referred to earlier, which cannot be adequately served by adjourning the proceeding.
45 A community correction order is punitive, but it occurs to me that its purpose is to address offending behaviours, and specifically, by having regard to addressing the circumstances of the offender. That is clearly stated in s36(1). I do not propose to undertake an extensive analysis of the community correction provisions but I think I am on safe ground in describing those provisions as being directed more to the rehabilitation of an offender.
46 You do not require rehabilitation for reasons which I have made abundantly clear already. To convict you and release you on a community correction order with a condition of supervision only does not reflect the real purpose of the community correction provisions. It occurs to me that it would be a hollow community correction order. I do not consider that adjourning the proceeding is an understatement of the seriousness of your offending.
47 I have read a number of other decisions of the Court of Appeal and the sentencing remarks of two judges of this Court in an effort to determine whether the degree of significant moderation I intend to afford you is inconsistent with comparable cases.
48 DPP v Nicolakopoulous [2015] VCC 1498 and DPP v Warrick [2016] VCC 1134 are cases in which the accused was sentenced on a count of dangerous driving causing death. They were sentenced by release on a community correction order with conditions.
49 The circumstances of your offending do compare favourably to the two cases I have just referred to and the particular personal circumstances of those accused. I consider that your circumstances are exceptional and warrant the step that I propose to take in acceding to the submission made by your counsel.
50 I should add that the real difference between adjourning the proceeding and a community correction order is really illusory, because what will precede release on a community correction order, will be a conviction. In your case, I propose to convict you before adjourning the proceeding. Entering a conviction is, of itself, a significant part of sentencing. I am not convinced, therefore, that the perceived difference between one order and the other is material.
51 I have paid due regard to the plea made on your behalf by your counsel and to the factors which I consider are appropriate in sentencing you. The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.
52 I now ask you to stand please.
53 On each count, you are convicted. The proceeding is adjourned for a period of eighteen (18) months and you are released upon giving the following undertakings:
·That you will attend before the Court if called on to do so during the period of the adjournment;
·that you are of good behaviour during the period of the adjournment; and
·that you make a payment of $1,000 to a charity of your choice within 21 days of this date and provide proof of such payment within that period of time.
54 Furthermore, the licence that you hold to drive a motorcar is cancelled and you are disqualified from obtaining such a licence for eighteen (18) months.
55 You can now be seated.
56 Pursuant to s6AAA of the Sentencing Act 1991, if it had not been for your pleas of guilty, I would have sentenced you to 12 months’ imprisonment with a minimum of four months before you would become eligible for parole.
57 Mr Brown, firstly, anything else?
58 MR BROWN: No, Your Honour.
59 HIS HONOUR: Mr Richter?
60 MR RICHTER: No, Your Honour.
61 HIS HONOUR: Yes, all right. Mr Ellett can be released from custody, thank you. In the absence of anything else, I will now adjourn the Court until - I am sorry, I have one bit of paperwork to do. Yes, thank you, I will now adjourn the court until 10.30.
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