Director of Public Prosecutions v Elliott

[2017] VCC 1489

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SALE
CRIMINAL JURISDICTION

CR-17-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN REEVES ELLIOTT

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Sale
DATE OF HEARING:	16 October 2017
DATE OF SENTENCE:	17 October 2017
CASE MAY BE CITED AS:	DPP v Elliott
MEDIUM NEUTRAL CITATION:	[2017] VCC 1489

REASONS FOR SENTENCE
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Subject:  Criminal Law

Catchwords:  Culpable driving causing death, Two victims, Mature offender.

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr A. Marshall	Warren Graham & Murphy

HIS HONOUR:

1John Reeves Elliott, you have pleaded guilty to two charges of culpable driving causing death, contrary to s.318 of the Crimes Act 1958. The maximum penalty for that offence is 20 years imprisonment or a Level 3 fine or both.

2You have pleaded guilty after your case was listed for contested committal and whilst it was not at the earliest opportunity it is nevertheless an early plea.  It has spared the community a complex criminal trial and it is evidence of your remorse.  I have taken your plea into account in your favour in mitigation of sentence.

3You have admitted a criminal history dating to 1979 for a range of driving, weapons and public nuisance offences.  The only conviction that is of significance in this case is for Aggravated Burglary, Criminal Damage and Making a threat to Kill in the Sale County Court on 17 February 2012.  You were released on a Community Correction Order for two years on that occasion, conditional upon you performing 400 hours unpaid community work and undergoing treatment for alcohol abuse.  Your offending on that occasion was alcohol related and it is clear that the conviction and Community Correction Order did not curb your alcohol abuse. 

4A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

5On 10 June 2016 at about 12.30 pm you met up with three friends, John Handley, Tim Melbourne and Charles Dean at Dean's property at Stockdale, about 18 kilometres from your farming property at Bushy Park.  You there drank two full strength beers, as did the others.  At about 2.30 pm you left with Handley and Melbourne in your vehicle to feed cattle at a property you leased at Glenaladale.  It was agreed that you would all meet Dean at the Lindenow Hotel later that afternoon.  The hotel is approximately 50 kilometres from your home at Bushy Park, 14 kilometres from Dean's home and approximately
18 kilometres from Bairnsdale.

6You arrived at the hotel at approximately 4.20 pm and commenced drinking.  You there consumed 11 10 ounce glasses of full strength beer and the other members of the group were also drinking heavily.  You became more intoxicated as the drinking session progressed, to the point where you were noticeably unsteady on your feet.  Apart from stating that you all should drink a glass of water before consuming any further alcohol, the staff thereafter continued to serve you despite the obvious fact that you were all heavily intoxicated.

7At approximately 7.45 pm you decided to leave the premises and you purchased another dozen cans of beer.  It would appear that no consideration was given to you not driving, despite the fact that taxis were no doubt available to come to collect you from Bairnsdale.  It is not clear from the evidence whether you were driving to Dean's house or your house, some 50 kilometres away. 

8On the Fernbank-Stockdale Road you failed to negotiate a bend in the roadway and collided with a tree.  Melbourne and Handley both suffered fatal injuries and died at the scene.  You suffered some injuries and were trapped in the vehicle until it was discovered at about 8.30 the following morning by a person driving past.

9You were transferred to The Alfred Hospital for treatment for a serious laceration to your forehead and an injury to your knee.  In your vehicle were a number of cans of beer, four of which were open, and a bottle of Scotch that was half full. 

10Your approximate blood alcohol reading at the time of the collision was between .194 per cent and .351 per cent.  I will sentence you on the basis of the lower figure, namely .194 per cent.

11Plainly, you were incapable of proper control of a vehicle and your decision to drive was both inexcusable and highly reckless.  Steps should have been taken at the Lindenow Hotel to stop you from driving. 

12It is clear from this summary that your offending is a serious example of offences of this type.  Your two close friends lost their lives by reason of you driving when heavily intoxicated.  Whilst they were also intoxicated and knew that you were too, and they were not wearing seatbelts, this does not mitigate your offending to any significant degree and your counsel did not submit otherwise.

13I have received in evidence a number of Victim Impact Statements detailing the devastating effect that your offending has had on a number of persons and, indeed, on an entire community.  I accept that the deaths of Mr Handley and
Mr Melbourne has deeply traumatised their loved ones and friends.  Our society has made some progress in relation to road safety and drinking and driving but despite this, people still lose their lives at the hands of people like you.  It is an unnecessary and all too common tragic event, particularly in rural Victoria.

14Accordingly, the sentence I impose must be calculated to deter others from offending in this way.  I accept that specific deterrence is not a significant factor in this case.  However, you have offended repeatedly whilst intoxicated and despite your age the likelihood of you re-offending depends on you abstaining from alcohol.  Your decision to drive whilst so heavily intoxicated must also be the subject of the strongest denunciation by this court and you must be punished for your crimes.

15I now turn to your personal circumstances. 

16You were born in Gippsland on 4 February 1952 and are now age 65.  You are married and have three daughters, aged 18, 17 and 15.  Your two younger daughters are still at school.  Your working life has been spent in agriculture and you have an earthmoving and contracting business.  You reside on a 445 acre property used to graze cattle and at the time of your offending you leased other property for that purpose.

17I have received in evidence a body of references attesting to your character and community pursuits.  I accept that you are a generous man who has contributed to your community in a range of significant ways, including to the CFA and local sporting groups.  I also accept that you are deeply remorseful for your offending and ruminate on it frequently.  Your offending has damaged your standing in the community and in the eyes of your family and this too has caused you significant distress.  Your inevitable incarceration will require a restructure of your business, although it seems clear that your wife and family will be able to continue to run the farm at Bushy Park.

18I have also received in evidence two psychological reports of Mr Ned Tkalcevic and Dr Simon Kennedy, detailing your psychological profile and current psychological condition.  I accept that you have been an alcoholic for most of your adult life.  Furthermore you are currently suffering from post-traumatic stress disorder and related depression as a consequence of your offending.  Your psychological ill-health will be compounded by your incarceration and will also result in you experiencing a greater degree of hardship in prison than would otherwise be the case.  Your three daughters and wife will also be without your support and this will no doubt also cause you considerable anxiety and distress in prison.  You also suffer from hypertension. 

19I accept that your prospects for rehabilitation are good but, as I have said, they are dependent upon you not engaging in alcohol abuse.

20As was discussed during the course of the plea, it is unusual for a man of your age to be sentenced for offending of this type.  Your age and life experience should have led you to realise that driving was completely out of the question in the circumstances.  However, your age will also mean that imprisonment will impose a greater burden on you than it would on a younger man and you have not been incarcerated before.

21In the result, the sentence of the court is as follows - 

22In relation to Charge 1 you are convicted and sentenced to be imprisoned for six years;

23In relation to Charge 2 you are convicted and sentenced to be imprisoned for six years. 

24I direct that two years and six months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  This makes for a total effective term of imprisonment of eight years and six months.  I direct that you serve four years and nine months before becoming eligible for release on parole.

25I declare that you have served one day by way of pre-sentence detention.

26But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of 11 years with a non-parole period of seven years. 

27All driver's licences held by you are cancelled.  You are disqualified for a period of two years from 16 July 2021.  You are not to be re-licensed except on the order of a Magistrate.

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