Director of Public Prosecutions v Flintrop

[2020] VCC 601

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

AT GEELONG
CRIMINAL JURISDICTION

CR-18-00610

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE FLINTROP

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	8 May 2020
DATE OF SENTENCE:	8 May 2020
CASE MAY BE CITED AS:	DPP v Flintrop
MEDIUM NEUTRAL CITATION:	[2020] VCC 601

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Moran	Office of Public Prosecutions
For the Accused	Mr Howson	Valos Black & Associates

HIS HONOUR:

1Jake Flintrop, you have pleaded guilty to dangerous driving causing the death of Brett Roberts.  Mr Roberts was much loved.  The tragedy of his avoidable death has left lives utterly (indistinct).  He is deeply missed by his grieving wife and his wider family. 

2In this sad and painful set of circumstances my task is to impose a sentence.  No sentence could ever be taken as the value or a measure of Brett Roberts' life.  His live was invaluable, immeasurable.  It always will be.  The sentence
I pass must be just and appropriate.  It must be in accordance with our law.  Thus I must ensure that the purposes of passing sentence are properly met. 

3The sentence must be proportionate in its denouncement of your conduct,
Mr Flintrop.  It must express to the whole community that if you drive dangerously and take a life there will be punishment.  It must take into account the dreadful impact on the deceased's family.  It must weigh up what sort of man you were in the past, Mr Flintrop, and what the future holds for you now that you are forever changed.

4These cases are notoriously difficult.  Heartbreak and intense emotions caused by the death of someone like Brett Roberts means there are, and will be, different views on what is the right sentence.  In the end the sentence must be just and appropriate taking into account all the circumstances of the offence and its impact and the circumstances of you, the offender, Mr Flintrop.

5On 11 November 2016 Brett Roberts was doing what seemed to come naturally to him.  He was helping out a friend in need.  You, Jake Flintrop, had had an argument with your then partner after coming home from work.  You were not in a good frame of mind and you left your home and headed to see various friends including the deceased's partner, your cousin.  You drove to see your father and your sister at a motorcycle clubhouse in Morwell and then you spoke to the deceased, Mr Roberts.  He was concerned for you it seems.  You and he went to his property and talked.  You then drove with Mr Roberts to get a pizza and then on to see your father and sister again at the clubhouse.  You had had some alcohol over the evening but it is not said you were over the legal limit or that alcohol contributed to the collision. 

6After a little time at the clubhouse you and Mr Roberts, in your car followed by your father and sister in a car behind, set off for home.  You drove a very short distance along a road that then turned into Swan Road.  It was about nine seconds of driving before you failed to properly and safely negotiate the sharp end in the road.  The speed limit was 60km/h.  The prosecution asserts and you agree that you were travelling above the speed limit.  The prosecution opening put it in this way, in general terms, that it is that alleged that you were travelling moderately above the speed limit in the vicinity of 70km/h. 

7You took that corner too fast.  You overcorrected and you lost control and hit a pole.  Brett Roberts died instantly.  You were seriously injured.  The speed, going above the speed limit, was not inherently dangerous for the straight part of the road leading to Swan Road but it was dangerous for the bend. 

8Notwithstanding the grief caused by Mr Roberts' death I must stand back and assess the circumstances.  I am aided because the parties are not far apart, or that far apart, that the level of dangerousness involved was low. 
The prosecution contend and maintains that it was not at the lowest end. 
Your lack of proper attention, care and control of the speed of your car was brief.  But by your mis-judgment you fell below what is expected of all drivers.  However despite the catastrophic consequences your conduct was not a serious example of this offence.

9The Court of Appeal has emphasised that I must not get distracted by artificial analysis involving too fine and granular distinctions in the level of moral culpability.  Taking that on board I am of the view that your moral culpability was at the lower end.

10Although no two cases or any number of cases are identical the Court of Appeal has expressed the view that where the moral culpability of a driver is low, a broader range of sentencing options open up for consideration depending on all the other circumstances of the case.  As your moral culpability is low I do not need to place significant weight in the sentencing purpose of denunciation or outright punishment of the wrongfulness of what you did.

11While ordinarily imprisonment is the only option in driving offences where a life has been taken there remains a discretion to do otherwise if the behaviour was a momentary mis-judgment or lapse.  That is the case here.

12That said, the impact of the loss of Brett Roberts' life has been profound. 
The victim impact statements make that clear.  Brett Roberts' partner, Mrs Amy Roberts, read her victim impact statement to the court.  It was heartfelt and it was devastating.  She began by saying there really are no words that she has that can describe the pain and turmoil caused to her life since the night she lost her husband, Brett.  "

13Life will never be the same.  No matter what the outcome of this court case it will never change.  That I will never get to see Brett again.  It will never change the future I thought I would have, growing old with Brett.  I didn't get the chance to say goodbye and tell him again how much I love him".

14She speaks of the devastation upon her children.  Both the devastation when they learnt the news of the death of their father.  He was, she said, a massive part of their life.  Although he was a stepfather to the four older boys he was very much the only father that they had known.  He did much with them. 
His attachment and the attachment of the daughter who Brett Roberts - was very significant.  She has been deeply affected by the loss of her father who she was with constantly.

15Mrs Roberts speaks about not being to sleep, eat for weeks after and she still struggles to this day.  She lives, and describes, she lives with constant anxiety, panic and fear.  Every day is a struggle.  The hole in her is one that will be "never filled again".  He was, to Mrs Roberts, the best thing that came after the tragedies that she had already endured with her first husband, the father of the four boys.  She misses every aspect of the life she had with Brett Roberts. 
The text messages he would send, the phone calls he would make, the look on her children's face when they saw him or were able to spend time with him. 
She misses the examples that he was setting for all the boys and the connection with her daughter. 

16She speaks briefly of the devastation to the wider family because you,
Mr Flintrop, were a cousin but she describes that you were more like a brother.  She feels alone and empty because she feels she did not lose just a husband but her whole family.

17There is a degree of ability, really.  She expresses that she will always love you because family is important but she is struggle with the pain.  She has said her life has not been the same since.  She does not socialise.  She cannot feel the same with people that she would have mixed with in the past.  Financially things are extremely difficult.  The significant impact upon her has been on her mental health.  She struggles in many dimensions with her mental health.  Her children have struggled both as a consequence of the loss of their father and the impact of that on their mother.  They have struggled at school and in many ways, to remain connected to others and to her.  

18She speaks about "everything I thought I knew is gone.  I don't know how to get through life anymore.  Brett was my soulmate and he loved me for me and was there by my side and I don't have him anymore". 

19She concludes that:

20"… even with all this sad I still cannot describe how our lives have changed. 
I don't know how to move forward.  It's a constant battle every day.  Brett was my rock and he was honestly the love of my life.  He was caring, thoughtful, loving and an amazing husband and father".

21He took Mrs Roberts' children with "open arms and was there every single day.  Trying to learn the ability to move forward with life, with everything - with you being taken away is the hardest thing to do".

22We often read victim impact statements in matters of this kind and learn from them.  Mrs Roberts' victim impact statement is one of the most profoundly moving that I have read in my time on the Bench. 

23Mrs Roberts' father, Brett Roberts' stepfather, Mr Matt Ian Matthews, also speaks about how wrenching it has been to see the impact upon his daughter and grandchildren of what was a completely avoidable death.  Being financial difficulties and this has come upon the mental health difficulties that he speaks about.  He says:

24"I just want the court to know that the circumstances around Brett's death have destroyed the lives of three generations of the family.  It has destroyed the future of five young children".

25Brett Roberts' parents, in simple terms, wrote that, "We lost a son, a brother, an uncle and a loyal and caring person, a loving father with all the milestones that that encompasses.  There is a void in our lives that cannot be filled".

26On 6 March 2020 I heard and granted an application for a sentence indication.  The effect of that was that you pleaded guilty, Mr Flintrop, after I decided that should you do so I would not impose a sentence involving immediate incarceration.  As I have indicated usually imprisonment is imposed for this crime but usually the level of moral culpability of the driver is much higher than here.  Also the fact that this is personal to you added important mitigatory weight to the overall synthesis.

27You are now 31 years old, shortly to turn 32.  You were 28 at the time. 
You were raised in Gippsland, one of six children.  Your parents separated when you were eight.  You were with your mother for most of the time.  You left school and embarked on an apprenticeship, which you completed and have enjoyed a solid work history thereafter.  That is to your credit.

28You commenced a relationship in 2012 and your son was born in 2013. 
Your relationship commenced to deteriorate in 2016.  The argument with your ex-partner on the night saw you upset and Mr Roberts came to help you and talk to you. 

29After the collision you (indistinct) hospitalisation the decline in your mental health.  Your relationship came to an end.  You had formed a new relationship in recent times and that is one that is important to you.  You were seriously injured in the collision and remained in the Alfred Hospital for some time. 
You sustained a brain injury.  The main effect was on your memory.  Overall there has been psychological impact as well.  You were referred by your general practitioner for psychological treatment and counselling.  I have read the helpful report of your treating psychologist, Ms Wilson. 

30She saw you from December 2016 and noted in the report that that was up to December 2019.  I was told this morning that you still have some counselling.  She diagnosed and then treated you for depression and adjustment disorder.  These symptoms being the suicidal ideation, insomnia and low mood. 
Ms Wilson's treatment regime has helped and she considers your prognosis to be good.  You have not developed post-traumatic stress disorder but remain vulnerable for that serious condition. 

31Your friends have observed how you declined after the death of Mr Roberts.  He was a friend of yours.  Mr Fila, a close friend of yours wrote that because of your brain injury you have to be told over and over that your friend, Mr Roberts, had been killed in the collision and each time you were genuinely heartbroken.  He saw you become depressed and withdrawn, in contrast to the man he knew before.  He saw your panic attacks and physical aversion to being in a car. 
He spoke of your suicide attempt in 2017 and your efforts to re-stabilise.  Others have also spoken in similar terms about you being able to stabilise with the counselling which you have adhered to. 

32You have remained employed, working now for over three years at an engineering company in (indistinct).  Your supervisor, Mr Norton, spoke of your fine personal and professional qualities.  You are a valuable employee with a strong work ethic and good characters. 

33I also take into account you have no prior convictions.  You are entitled to call upon that in asking for a merciful sentence.  It is pointed out by the prosecutor, quite correctly, that good character and the absence of prior convictions in matters of this kind has less weight attaching to it than it might otherwise be the case because so often good people are involved in these sorts of crimes. 
Too much weight cannot be given to their prior good character.

34All involved in this tragedy have spoken of the added burden and stress brought about by the delay from the collision on 11 November 2016 to the current time.  Delay in court proceedings is debilitating.  I fear that those who work in the court become immune to the true daily impact of delays for those deeply involved in the one life changing legal case.  Each factor causing the delay has a rational explanation.  Yet it remains an awful and heady extra burden for the victims and the accused. 

35I do not intend to go into details as to what the causes are attributed to the delay in this case.  There are many and to solve one problem simply exposes another.  I have taken into account the delay involved.  It is one of the longest that I have seen in recent times, which in one sense means that we may be getting better at it, (indistinct words).  Our efforts will have to redouble given the new problems that will arise due to the COVID-19 pandemic.

36In that context your plea of guilty is of significant value, especially as there is the suspension of jury trials in this state at the moment.  I note that you pleaded guilty before the suspension of jury trials.  I adopt what was said by Justice Jane Dixon in a sentence imposed in the Supreme Court in the matter of (indistinct) v R as to the value of a plea of guilty in the current circumstances.  Although your plea came after the sentence indication hearing it remains valuable given how the expert evidence in the case has developed and how the circumstances, the prosecution case and the charges, have altered. 

37Relieving the deceased's family of the added trauma of a trial is important and valuable.  As I have often observed in these types of cases, people involved are multi-dimensional and emotions are not just black or white.  I mean by this that although you have pleaded guilty in March 2020 you have always and deeply regretted the death of Brett Roberts.  It has affected you and will do so for the rest of your life.  You are not the same as you were before.  If I can, and I do, give weight to your remorse I see it as authentic.  You have solid prospects for the future.  You remain hardworking, law-abiding but, as I have said, always affected by what happened. 

38I have referred to important sentencing purposes of denunciation and perhaps the most important sentencing purpose, of general deterrence.  The devastation caused by these types of crimes means that the court must make clear the save for cases of truly momentary mis-judgment, those who cause the death of another person on the road will ordinarily go to gaol and do so for years.

39However I cannot sentence someone to gaol if the sentencing purposes set out in the Sentencing Act are met by punishment less than gaol.  The question always whether general deterrence, that purpose, is met by punishment less than gaol.  Earlier, in the sentencing indication, that was resolved by taking into account the message of deterrence, that all other factors such that all sentencing purposes, including general deterrence, can be met by an onerous community corrections order.  That was the decision that I made. 

40That was because of what was said by the Court of Appeal in the important decision of Boulton v R about community corrections orders and the change that that brought to the sentencing landscape.  Also what was said by the then Attorney-General in parliament introducing a regime of community corrections orders are that they are deterrent punishment.  That they are punishment in and of themselves.  They are no soft option.  That they do allow for rehabilitation in the sense that families are kept together and that there is capacity to continue to work and be employed.  

41As I have said, or as I commenced, this punishment, its form, its length, its requirements are not the measure of Mr Roberts' life.  There can be no equivalences.  Rather it is what our law allow or, indeed, what it requires if I am of the view that all sentencing purposes can be met by punishment less than gaol.  In my view, a long community corrections order, punishment involving community work together with a loss of license is a just and appropriate sentence.  Thus I impose the following sentence:

42On the charge, Charge 1, of dangerous driving causing the death of Mr Roberts you are convicted, Mr Flintrop and I place you on a community corrections order that will last for four years.  I order that you do 300 hours of unpaid community work within that four year period of time.  It is not optional, it has to be done subject to the arrangements that Community Corrections have in respect of the current pandemic.  Over the four years there needs to be 300 hours of unpaid commitment to work that repays the community. 

43Required by the statute, I cancel your license and disqualify you from driving.  There is a minimum term.  I have considered that and the submissions made by both counsel.  In my view it ought be for a period of 20 months.

44Had you pleaded not guilty to these offences and been found guilty of them
I would have imposed a sentence of three years and six months with a minimum term of two years' imprisonment. 

45Is there any other order required?  Ms Moran, you're on mute.

46MS MORAN:  Sorry.  No, no other orders, Your Honour.  Although just (indistinct) with conviction, is that correct ‑ ‑ ‑ 

47HIS HONOUR:  Yes, with conviction.  I'm fairly confident that I'm - I have the discretion to impose up to 300 hours without securing a reporter assessment from the Office of Corrections.

48MR HOWSON:  That's correct, Your Honour.

49HIS HONOUR:  You're very kind, thank you.  Anything else that needs to be done, Mr Howson?

50MR HOWSON:  No, Your Honour.`

51HIS HONOUR:  Thank you.  I thank counsel for their very considerable assistance in a difficult case, as they are.  If there's nothing further then I'll leave the meeting.  What will occur - I'm sorry.  We'll have to finish now.  I'm miles along - I'm so sorry. 

52Mr Flintrop, what the sentence imposes upon you is a community corrections order.  I need to explain that to you.

53So firstly, it goes for four years and it has conditions that apply to all people on community corrections orders.  I will just run through those with you. 

54The first is the most important.  You are not to commit any offence for which you could be imprisoned during the course of the four year period.  So you cannot commit another offence.  If (indistinct) of one minute, that if you drove your motorcycle or a car during the period of time that you are disqualified, that is an offence punishable by imprisonment.  That will breach this community corrections order even if the magistrate just fined for driving whilst disqualified you would nonetheless return to me and the mercy shown here will not be repeated.  Do you understand?

55The next thing is that you must cooperate in a number of ways with the Office of Corrections.  They will need to know who you are and there are regulations that allow them to take photographs of you and the like.  You have got to comply with that.

56You have got to report to the Office of Corrections which the address will be on a document that will be provided to you.  It is the Gippsland office, the Latrobe Valley office which I think is in ‑ ‑ ‑ 

57MR McINTOSH:  Morwell, Morwell Your Honour.

58HIS HONOUR:  Morwell.  Yes in Morwell.  Thank you, Mr McIntosh.  So you have to report to that within two clear working days.  The reporting requirements in the current arrangements are by telephone.  So you have got to get in touch with them by telephone within 48 hours.  Do you understand?

59You have got to comply with other matters.  You have got to let them know if you change your address or your workplace.  You cannot leave Victoria without permission.  You have got to abide by all lawful requirements and directions from them and receive visits from them.  So it is just a degree of cooperation. 

60In addition to that there is the one program condition that you do the hours, the 300 hours, over the four years.  So that is the community corrections order.  Ordinarily that will all be in a document that will be provided to you.  You can read through it and sign it and so forth and if you consented to it, you would sign it.  That cannot occur and there is no statutory requirement for you to sign.  Rather you have to consent to it.

61So, Mr Flintrop, having heard all that and if you need more time, just say so.  Do you consent to doing the community corrections order?

62OFFENDER:  Yes.

63HIS HONOUR:  Thank you.  Mr Howson and Ms Moran, the document will be provided by my associate.  I will place an electronic signature on it and it will be provided to the parties including to Mr Howson's instructors and it can move forward from there.  The order will also be posted.  So if there is nothing further required?  Ms Moran, you're again on mute.

64MS MORAN:  Sorry.  (Indistinct words) my instructor, Ms Cameron, will email Your Honour's Tipstaff or associate be redacted, the victim impact statement (indistinct).

65HIS HONOUR:  Yes and we'll forward that on to the journalist involved.  All of this will be on a portal that they can access.  All right, if there's nothing left I'll leave the meeting, sign those orders separately and they'll be forwarded to the parties.  So I thank the parties for their considerable assistance and if Mrs Roberts, who is still online, I thank her for her very significant effort in a very difficult situation in making it clear to me the impacts on her of the loss of her partner.  Thank you.

66MR HOWSON:  May the court please.

67MS MORAN:  Your Honour pleases.

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