Director of Public Prosecutions v Forbes

[2014] VCC 2073

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01677

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN FORBES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 December 2014
CASE MAY BE CITED AS:	DPP v Forbes
MEDIUM NEUTRAL CITATION:	[2014] VCC 2073

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos
For the Offender	Mr P. Chadwick

HIS HONOUR: 

1John Forbes, you have pleaded guilty to one charge of dangerous driving causing death.  That crime carries a maximum penalty of ten years' imprisonment.

2Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  I must advise you that that order having been made, if you refuse to provide such a sample, the police may use reasonable force to take it from you.

3You are 24 years of age.  You pleaded guilty, at a reasonably early opportunity, and guilty to a settled indictment.  I accept that you have, subsequent to this, displayed profound remorse for what you did and I accept also from the materials that have been provided that you have insight in to the effect that your actions had on so many people.

4You also get the utilitarian benefit of that plea of guilty.  You provided a blood sample in circumstances where you were not obliged to.  It is that sample which gives rise to the reading which I will refer to shortly.  You, in a sense, have provided very significant evidence against yourself when you need not have.  You could also have, on my understanding of it, having read the depositions, challenged that reading and run a trial.  You have elected not to do so and that is very much in your credit.  You get the benefit of all those matters.

5You, unfortunately, have a prior finding of guilt for exceeding .05 back in 2009.  I accept from your counsel that that was not a high reading.  The difficulty with that prior conviction is that you did the driver's course afterwards.  That course is designed to make it very clear, to people who would potentially drive when drinking, the extreme danger of it.  That does certainly not assist you in this situation.

6The circumstances surrounding the offending can only be described, I think, as every parent's nightmare, from both sides.  On 26 January 2014, at around about 6 o'clock in the morning, you were at a festival on a 52 acre property near Rochester.  You had a Volvo sedan and you reversed it from a stationary position over the top of a tent that had been erected to the rear of your vehicle.  You were seen to be stationary on top of the collapsed tent, with your wheels spinning.

7Whether you were previously aware of that tent being in such close proximity, I do not know, but I sentence on the basis that you were certainly not mindful of it when this driving took place.  That tent was occupied by one sleeping girl, who received fatal injuries and was pronounced dead at the scene.

8The vehicle was moved and it was not known that you had committed these actions until approximately six hours later.  You were identified by a witness who had been asleep, but had seen you on top of the tent in your vehicle.  I accept, for these sentencing purposes, that you have no memory of this occurring and that you were in no position to be admitting to it afterwards because you did not know about it.

9The festival, as I said, was on Australia Day.  There were approximately 300 people registered to attend and it was to go from 1.30 pm on the Saturday until 2 pm on the Sunday.  The stage was set up on the eastern side of the Campaspe River.  You entered the property from a main entrance gate and then went towards the stage which was some 250 metres from the roadway.  There was a makeshift hard clay track used to assist vehicles.  It was essentially unregulated.  Vehicles were parked where people chose to park them and tents were pitched where people chose to pitch them.  The occupants of the vehicles that came in usually set up their tents and swags in close proximity to where the vehicles had been parked.  Some campsites were set up to the rear of the line of the vehicles.

10In this situation, as I understand it, there were effectively two rows of parked vehicles with associated camps, tents, chairs, in and around those vehicles.  Katie Broadbent and her boyfriend Scott O'Connor attended this festival and were parked in the second row of vehicles, being further east than the first row.  They erected their tent to the right of their vehicle and directly behind yours.  Your vehicle had been parked prior to the tent being erected and the evidence is unclear as to whether you saw that tent during the daylight hours.  It would appear that you may well have seen it during the darkness.  As I have indicated, I am sentencing on the basis that you were not mindful of its presence at the time of your driving.

11The photographs that were taken by attendees at the festival indicate that the tent was very close to the rear of your vehicle.  The camp area had no independent lighting and any lighting had to be provided by people within the camp or vehicles.  At the time of the collision, as described in the Crown opening, it was a still and clear morning and the weather was fine.  Sunrise was apparently at 6.02 am, around about the time of this occurring.  Katie Louise Broadbent was 35 years of age and employed as a theatre technician.  She was there in a relationship with her boyfriend, Mr O'Connor.  Mr O'Connor was your best friend.

12The cause of death is said to have been one of mechanical asphyxia and the setting of severe compressive force.  At the time of this offending you were 24 and the holder of a full drivers' license.  You were all parked with a core group of friends who attended the festival.  People made their way to the stage area as the afternoon wore on.  Clearly there was heavy drinking and people were taking drugs.  You were observed throughout the course of the evening consuming alcohol and on one occasion to take a tablet orally.  There is no dispute that you had taken ecstasy.

13You and one Sally Hayes were not known to each other prior to the festival.  You were both at the stage area dancing.  You and Ms Hayes remained in each other's company throughout the course of the evening.  She said that you appeared to be drunk.  At approximately 3.30 am you and she left the stage area and walked back to her tent, where two people were already sleeping.  You then asked her back to your car.  She said, "He seemed drunk and I wanted to make sure he got back to his car."  The two of you walked to the car and you got in the driver's seat.  She sat on your lap for about ten minutes and you fell asleep.  She returned to her tent, but she noted the time at 3.55 am.

14A witness, Samantha Turner, made her way back to the camp area where she saw your vehicle.  She said, "There was a dark coloured tent tangled up under the car.  At this time I was to the right of his car, two to three metres from his driver's window.  The tent was virtually under the driver's seat.  Forba," as I assume that you were called, "was revving the engine loudly.  I don't know if the front wheels or the back wheels were spinning.  Forba had his driver's side window down a little bit.  I continued walking towards him and I said something like, 'Why did you run over the tent, that's silly?'  I said, 'Someone could have been in it.'"

15You did not reply.  You looked at her and said nothing that she could recall.  You were still spinning the wheels.  She reached down and tried to pull the tent out.  She said she did not make much of an effort because she was tired and it was stuck fast.  She left that scene and made her way back to her tent, where she fell asleep, as I understand it was she who woke up later on realising what must have occurred.  Other people heard the engine revving and the spinning of the wheels around the same time.

16At about a quarter to nine, Mr O'Connor, who had still been at the stage area, made his way back to the tent.  He had seen the tent lying flat on the ground.  He was unsure of where Ms Broadbent was and believed she may have been asleep in a nearby car or tent.  He walked up to Ms Turner's vehicle and woke her up.  He approached your vehicle and woke you up.  You were asleep in it.  The car was in a different position.  You both went to the toilet block and Mr O'Connor attempted to send Ms Broadbent an SMS message asking where she was.  He walked back towards the flattened tent with the intention of moving it in to the shade.  He nudged the tent with his foot and felt something.  It was at this stage he looked inside the flattened tent and discovered his girlfriend.  He became distressed at this stage and began screaming.  You came over not knowing what you had done and began to comfort him.  As I said yesterday, it is hard to imagine a more dreadful scene than what that young man faced.

17A registered nurse who was already there came running over and attempted CPR.  An ambulance was called and was taken to the scene.  It was later on that it was pointed out that you had been in the vehicle on top of the tent.  You were arrested and taken to the Echuca Hospital where you provided, voluntarily, a blood sample at 1.35 pm.  That sample was later analysed and found to contain .130 grams of alcohol per 100 mils and .08 milligrams of methamphetamine.  That is MDMA, which is ecstasy, not ice, and I make that clear as your counsel did.

18Doctor O'Dell, the police forensic physician, has estimated that at the time of the driving over the tent your breath reading would have been somewhere between .206 and .281.  He said that the preliminary breath test results suggest that the lower figure is more likely.  Whatever basis that is worked out on, and he may even be being generous, as I indicated yesterday, that is a very high level of intoxication.  In these circumstances I am unable to make any finding as to the effect that the ecstasy may have had in that situation, but I am prepared to find that it did not help.  As was pointed out by both counsel and myself, the fact of the matter is that you were extremely intoxicated, that intoxication was self-induced, and it does not matter why.

19It is a dreadful scenario, indeed.  The situation is, and it was discussed very fully yesterday, during the very sensible and experienced plea, if I may say so, you had been to concerts such as this before.  You were aware that large numbers of young people would be intoxicated, clearly intoxicated, and that the risk of driving a vehicle where people may be asleep on the ground, might be asleep in tents, unconscious even, was a dreadful one.  Indeed, as people enter, or entered that festival, they were given a program.  I, of course, do not know whether you have read that or not, but what it says is, "No driving, keep your car parked once you get to the Milky Bay site.  If you arrive after dark leave your car in the first paddock and walk up to the party from there.  It is probably a good idea to take your keys out of the ignition, too."

20It seems to me that the risks involved of endeavouring to move a vehicle under those circumstances, particularly when that intoxicated, are high indeed.  It is in some respects, for this charge, difficult to imagine a more dangerous scenario.  Ms Broadbent, as I have said, obviously, was deceased at the scene.

21A crime such as this effects a vast amount of people.  She, of course, is unable to tell us, but her family, or a number of them, have read out in this court victim impact statements.  I will say that they read those statements, I thought, with great courage and extreme dignity in an extraordinarily difficult circumstance.  That ceremonial court is a very unfortunate one to have to deal with, with a matter such as this, and it is a bit like a barn.  I thought, and I say this directly, I thought the family behaved extremely well in the circumstances that they faced.

22I often do not quote largely from victim impact statements in these sorts of sentencing matters.  They have been read out loud and people have heard them, however I feel in this situation that I should do so.  General deterrence in a situation such as this are paramount.  Since this matter has become known, indeed since yesterday, a number of other judges have spoken to me about their children attending these festivals, and using this as a warning, already.  I understand, also, that since this occurred most festivals now have regulated parking in endeavour to stop this occurring.

23You will have to go to gaol for this, Mr Forbes, but if that gaoling of you saves even one life, because of the general deterrent aspect and the warning to others, that is something the community would say that they wanted.  Ms Broadbent's father said, and I make it very clear I am not reading out the entire victim impact statement, I am doing it so that the victim's family know they have been heard.  Obviously I cannot go through the entire statements, it would take ages.  I also point out that the things that I am taking from them are simply a summary, but I take in to account all the statements and everything in them is important, not just what I refer to.

24Her father said:

"On 27 January this year, at 5.45 am, in the morning, there was a knock on my front door.  My life changed forever at this point.  It was the police informing me of Katie's death.  No parent should ever have to deal with such an event.  The shock of hearing your daughter has been tragically killed hit me so suddenly and left me unable to move.  The suddenness of hearing this news left me with a grief that was heart wrenching.  I feel so helpless.  So helpless I was unable to save my daughter.  Helpless that I can't control the situation and carry on with life.  I have no enjoyment in life, I have become isolated from friends, family, and work colleagues because it's too hard to carry on a conversation about what happened on that terrible morning.  I feel as though my heart has been crushed and broken and that a piece of my heart has been taken.  I am angry that a senseless, thoughtless, act was committed on Katie.  I am angry that neither god, myself, nor any of Katie's friends could stop this happening.  I have trouble sleeping, I have not slept for a whole night since 27 January.  I wake constantly with my mind going at a million miles an hour, thinking it was all a bad dream.  I ask what, if, and why.  I wake up in pain."

25He finds it difficult to see how he can get back to a normal life.  He is receiving counselling and psychological assistance.

26Katie's mother said:

"On 19 October 1978 I gave birth to my daughter Katie Louise.  She was just the most gorgeous thing I had ever seen and I felt an instant love that only a mother knows.  26 January 2014, Katie died.  My life has been completely gutted.  I felt physically sick when her father told me.  I feel devastation, such sadness, emptiness, and loneliness on a daily basis.  As time goes by it does not get any easier to deal with the loss of my beautiful daughter.  No longer can I look forward to her getting married and the joy of her having children of her own.  There will be no son in law, or extended family.  There will be no more birthdays to celebrate.  No more phone calls with Katie saying I love you, Mum, before we hang up.  No more advice to give or receive.  We were not only mother and daughter, we were true friends.  No longer will I feel her beautiful, warm, meaningful hugs or her gorgeous giggles.  I feel physically sick when I think about how Katie died, the fact that she died alone and was not found for several hours.  I am also grieving for Scott, Katie's partner.  They were the love of each other's lives.  I grieve that he was the one who found Katie and that image is the last time he saw Katie and he will live with that for the rest of his life."

27There is no victim impact statement from Mr O'Connor, but what Katie's mother has described I think has to be so accurate and so dreadful.  She said:

"No parent should have to go through this ordeal, to have your daughter's life packed in to boxes is so final, I just cannot explain how painful that was."

28Her Uncle Damien read a statement as well, and said this:

"This event has left me and my family with grief, anger, and numbness, which will not leave us due to the tragic manner in which Katie died.  Whenever I see a photo of Katie I have a sense of emptiness, heart break, and deep sadness.  Time has made it worse, not better.  With Christmas coming up, it will be very said for Katie's family."

29Her grandmother said:

"The grief and sadness that I feel at her loss has never lessened.  I will feel her loss so deeply this Christmas as she will not be with us.  Last Christmas confided in me all her hopes and plans for the future.  Now I feel such anger that they will never be realised.  Anger when I think of what might have been.  What makes the loss of Katie so unbearable is the thought that she died alone.  All I have now is a terrible sadness."

30Ms Hill also read out a victim impact statement.

"My 78 year old mum rang me at work, 7.25 am, to tell me that Kate had died in an accident.  She actually had to tell me three times and I went in to shock.  My mum had to tell all our family about Katie's death.  It is unimaginably horrific to realise the toll that has.  To have to say five times over, and over, and over, that Katie has died.  When I saw Katie on Christmas Day I remember thinking afterwards what a wonderful bright, lovely, woman she's turned out to be, and how much I enjoyed her company."

31She said that it feels like the laughter has gone.  She, to her eternal credit, said:       

"Our family lost my younger brother in a car accident, my father in law to a heart attack, and my father to chronic disease.  This loss is by far the worst because it was caused by another person and it feels like we were robbed.  I forgive the young man who has caused our grief.  I play that he will learn and grow and live a life of meaning and service to others."

32I might also add, in respect of those victim impact statements, and from experience it is not all that common, none of them launch an attack on you.  All of them talk properly about the dreadful consequences of what you did, but none of them have launched an attack on you.  Just so you and all your support people understand, that is a remarkable thing for a family to be able to do in such dreadful circumstances as this.

33A significant custodial sentence is inevitable and I am aware of the authorities and I do not propose to go through those.  We canvassed them yesterday.  The decision of R v. Needling is probably the leading authority in this state.  There is a number of factors that have to be taken in to account.  Clearly general deterrence plays a massive part in this sentencing process.  Specific deterrence not so much, I do not think that is - I would be very surprised if you did this again.  I think it being a dangerous causing death charge, that the risk involved was high, and I think there is no way around that.  It was a risk that you must have been aware of and it may well simply be that your level of intoxication inured you to that risk, however that is not what this is about, you are not charged with culpable driving and I am not going to sentence you for culpable driving.

34In terms of determining the length of that sentence, I then look to matters personal to you.  As I have indicated, I was assisted by a very professional and sensible plea.  You have very strong family support.  There are and have been a large number of people at this court to support you.  Upon your ultimate release I am sure that they will assist in your rehabilitation.  There was something in the order of 50 or 60 people here yesterday, during the course of that plea.  That is a very unusual thing indeed.

35Your circumstances are that you were brought up on a farm, obviously your father is a farmer.  He has now had a couple of hip replacements and is finding it more and more difficult to work.  You did well, pretty much, at school, despite a suspension for drinking at Ballarat Grammar.  You were captain of the football team.  You played for a local club.  After school you went to university and obtained a Bachelor of Agriculture.  You were at St Hilda's at University for the first year of that, as I understand it, and that is where the friendship group was formed that attended the festival on this tragic day.

36You, having obtained your qualifications, and having played football while you were in Melbourne, returned to the farm.  You had the opportunity and did, for a period of time, as I understand it, go to America for a period of time and went and worked in Scotland.  It is your intention to take over the farm as a fourth or fifth generation occupant and that was what you were proceeding to undertake.

37A number of character witnesses gave evidence on your behalf and, having been brought up in the country myself, I understand exactly what they were saying to me.  Your qualities are that you are described as being easy going and easy to get along with.  You are a very good footballer, by country standards, and could play football for money.  However, you have the view that it is more important for you to play for your local community and to try and get money from it.  I heard from a range of people from all walks of life.  You were described as very hard working on the farm, by the next door neighbour.  He also described how you joined the CFA at a young age, that you were a volunteer, that you were committed, and that you were a caring firefighter, very reliable and genuine.

38Mr Chapman, who gave that evidence, also told me that you are  concerned about being in prison, which you must be, was more for how your father will cope than for your own personal situation.  He described you as a person of integrity.  I heard from the house master, from when you were at Ballarat Grammar, who again described you as easy going and that you got on well with everybody.

39I heard from a lawyer, who has known the family, and known you since you were very small.  He described your qualities in terms of a country town, CFA, and all such matters.  You are clearly a valuable member of your community and a person of, other than this dreadful day, good character.

40A Mr Neiwand, a young man, gave evidence on your behalf.  He was a friend of both yourself and Mr O'Connor.  He said that there has been a dramatic change in you.  That you were previously outgoing and friendly, but that you are now reserved, and quiet, and that you rarely go to Melbourne.

41Tendered on your behalf, also, were a report from Dr Danny Sullivan, a psychiatrist who is well known to me, and also from a local practitioner.  You have clearly expressed remorse to each of those and I accept that you have suffered from depression and anxiety and a deep sense of guilt ever since.  You do not come from a criminal milieu in any way, shape, or form, and I accept your counsel's submission that a period of incarceration for you will be more difficult than it might be for many other prisoners.

42The problem with that is that so often in this sentencing process, for this type of offending, we are dealing with a totally innocent victim who has lost their life, and a young man who was heavily intoxicated, but an otherwise worthy member of the community.  That is what makes it, from everybody's point of view, such an impossible task.

43I think the prospects of your rehabilitation are excellent, as was pointed out by Dr Sullivan.  I think the risk of you reoffending would be totally dependent on you showing sense in terms of alcohol.  I am not going to give lectures about alcohol, or anything along those lines.  How this all came about, clearly the alcohol played a very significant part in it and it is really up to you, no one else can do that for you.

44I have gone in to detail, more than I normally would, with the victim impact statements and with the description of the offending.  I do that so that everybody understands exactly what you did and exactly what it is that you are being gaoled for.  I do not want there to be any misunderstandings of the seriousness of an occasion whereby a young person, obviously a treasured young person, loses their life through the actions of another.

45Firstly, in relation to your driver's license, there is a minimum period of 18 months.  I did not discuss this with counsel yesterday, but what I am proposing to do is this.  I am well of the authorities that say retention of the license upon ultimate release is important in rehabilitation and accordingly the license will be suspended for the duration of the custodial environment.

46On the charge, you are sentenced to be imprisoned for a period of four years and I direct that you serve a minimum term of two years before becoming eligible for parole, and I direct that two days be reckoned as having been served under this sentence.  I have taken very much in to account your conduct since and your plea of guilty.  Just so that everybody understands what would have happened had you fought this out and lost it, but for your plea of guilty I would have sentenced you to be imprisoned for a period of six years with minimum of four.  Any license to drive a motor vehicle is hereby cancelled and you are disqualified from obtaining a license for two years from today's date.

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