Director of Public Prosecutions v George
[2016] VCC 1399
•1 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01023
Indictment No. E13844811
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS GEORGE |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May, 1, 2, 3, 6, 7, 8, 9, 10 June, 5 July and 11 August 2016 | |
DATE OF SENTENCE: | 1 September 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v George | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1399 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – two charges of culpable driving
Legislation Cited: Crimes Act 1958 (Vic), s318(2)(b); Sentencing Act 1991 (Vic), s89(1)(c)
Cases Cited:Director of Public Prosecutions v DJK [2003] VSCA 109; Da Costa v R (2016) 307 FLR 153; Director of Public Prosecutions v Neethling (2009) 22 VR 466; R v Guariglia [2001] VSCA 27; R v Cowden (2006) 166 A Crim R 318; R v Hasan [2010] VSCA 352; Ibbs v R (1987) 163 CLR 447; Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105; R v Pannucio [1998] VSC 300
Sentence: Total effective sentence of twelve years’ imprisonment with a non-parole period of seven years and six months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Grant | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Sheales | Lethbridges Barristers & Solicitors |
HIS HONOUR:
1 Mr George is aged forty-nine and was born on the 12th day of February 1966, he stood trial in Indictment number E13844811, which comprised two charges of culpable driving. On the trial, Mr Grant appeared for the Director and Mr Sheales appeared on behalf of Mr George.
2 In the Indictment, the first charge is a charge of being, by way of his culpable driving, the cause of the death of Adam Beardsmore, and Charge 2, being by way of his culpable driving, the cause of the death of Daniel Hay, both deaths occurring in horrific circumstances of fire and smoke inhalation.
3 On 9 June 2016, the jury convicted Mr George of both charges.
4 The maximum penalty set by Parliament for such crime is twenty years. Such is indicative of the view of Parliament and the community as to the seriousness of such behaviour.
5 On 5 July 2016, a plea was conducted when exhibits “A” to “J” were tendered by the Director of Public Prosecutions, and exhibits 1 to 6 were tendered by the defence, and today exhibits 7 to 12 were tendered by the defence.
6 As I think you all know, no decision by this Court, or sentence handed down upon Mr George can bring back your loved ones, either Adam or Daniel. However, one of the tasks that Courts seek to serve and achieve in cases of this sort is the vindication of the victims, which is profoundly important for the criminal justice system to perform its role properly.
7 As Vincent JA said in Director of Public Prosecutions v DJK [2003] VSCA 109 at paragraph [16], on the issue of social rehabilitation:
“… The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. … .”
8 Given the particular nature of these crimes, I stress again my initial comments in regard to Adam and Daniel.
9 May I also at this stage formally thank the families and the victims for the manner in which they have conducted themselves, both in the trial and in the plea, and respected the Court process.
10 The Prosecutor tendered the Summary of the Prosecution Opening and submitted that such facts as detailed therein must have been accepted by the jury.
11 Given that the precise happening of the accident was at issue in the trial, I should detail of what I am satisfied as to the circumstances beyond reasonable doubt:
A. Both cars were travelling at an excessive speed leading to the collision on the Mornington Peninsula Freeway;
B. Both cars were travelling in a dangerous manner, in that there was only a short space between them as they travelled at high speed;
C. Both cars were seen to be held up by traffic, being a white Toyota driven by Mrs Jerram, and when she moved out of the way, the cars resumed their prior speed and formation after accelerating off at a speed “you would not believe,” said Mr Spedding in the trial. Mrs Jerram said when they took off after she moved to the left, “all hell broke loose”;
D. From at least the Nepean Highway off-ramp, Mr George had been following, and or pursuing, Mr Beardsmore’s car;
E. That persons on the highway to that stage remarked upon the noise and speed of both cars. Again, I refer to Mr Spedding’s evidence;
F. That the cars proceeded out of the sight of Mrs Jerram “in no time” and she said throughout the time that she could see them, that they maintained the same formation. Mrs Jerram, and her daughter and granddaughter, were quite distressed from the observations they made of such driving;
G. When the cars went around the right-hand bend after the Arthur Seat turnoff, on the highway travelling towards Portsea, and shortly before the happening of the accident, the car driven by Mr George moved to the left, partially into the left lane;
H. That the car driven by Mr Beardsmore had failed to take the Arthurs Seat turnoff (before the right-hand bend), that being the turnoff which logically Mr Beardsmore would have taken had he driven to Margo Street via McCulloch Street, which he would have been required to do had he got to his presumed destination where he was ostensibly headed; that is, to the home of Mr North;
I. As to the question of why Mr Beardsmore did not make that turn, there are two alternatives:
(a) that he was terrified, from the way he was being pursued by Mr George, and was hoping to outrun Mr George. The support for this scenario is that he, at no stage, veered from the right-hand lane after accelerating from the reduced speed of 100 kilometres per hour that he had reduced to, as he came up behind Mrs Jerram;
(b) that they were partaking in a drag race; such a conclusion would be consistent with Mrs Jerram’s evidence that the cars appeared to be partaking in a drag race, with the black car pursuing the blue car (which I point out respectively were a black Holden utility known as a Crewman SS and a blue Ford utility known as an XR6 Turbo).
I am unable to decide beyond reasonable doubt which scenario in regard to Mr Beardsmore is correct. Indeed, as to the whole of the driving, I am unable to decide beyond reasonable doubt whether it was a drag race or whether Mr George was “maniacally” pursuing Mr Beardsmore;
J. Irrespective, for Mr George the facts are that he was travelling at a gross speed of approximately 140 to 150 kilometres per hour while his car was at a ridiculously close and unsafe distance behind Mr Beardsmore’s car;
K. That shortly before the collision, after they came out of the right-hand bend, Mr George, according to Margaret Veal (who heard a roaring sound behind her as the cars passed her) – I point out that this was at approximately 1.00pm on a Monday afternoon on 7 November on the Portsea bound section of the double-lane Mornington Peninsula Freeway – the black car driven by Mr George veered left and thereafter clipped the car in front.
L. That the car driven by Mr Beardsmore may also have veered to some degree to the left according to the evidence of Mr Roane, after that the car driven by Mr George could also have hit the gravel. Then the collision occurred when contact was made with Mr Beardsmore’s car from the rear.
M. Mr Sheales submitted I should hold Mr Beardsmore complicit for moving to the left to block the path of Mr George’s car. I find that I cannot form such a conclusion, even on the balance of probabilities, but clearly, such is a possibility;
N. Before the jury, Detective Senior Constable Hay, Accident and Reconstruction Investigator, gave evidence that just prior to the collision at a point shortly before the collision (T1 on Collision Plan, being Exhibit D in the trial), Mr George’s car was traveling at 155 kilometres per hour. Despite extensive cross-examination on this point, when Mr Sheales addressed the jury, he did so on the basis that his client was traveling at a speed of at least 140 kilometres per hour at T1;
O. The tragic result of such a high speed collision was the death of the two persons in Mr Beardsmore’s car;
P. As a consequence, the jury made its finding;
Q. Clearly, Mr George, whatever the two cars were involved in (which only you know), your driving at a gross speed, ridiculously close to Mr Beardsmore’s car caused the death of Adam Beardsmore and Daniel Hay.
R. If anyone wishes to observe the results of such driving, the photographs exhibited, of the scene, and where the two cars ended and the damage caused, graphically illustrates the speeds involved (see Exhibit B in the trial).
12 The Learned Prosecutor submitted that this was a serious example of culpable driving, with tragic consequences calling for a penalty which reflects general deterrence, denunciation and in this case specific deterrence.
13 Insofar as the Learned Prosecutor referred to the considerations undertaken by the Court of Appeal in Da Costa v R (2016) 307 FLR 153, I find the prisoner’s driving created a high risk that not only would something go wrong that afternoon, but that death could result from such driving.
14 Many of the aggravating factors which can be present in these cases, as detailed in Director of Public Prosecutions v Neethling (2009) 22 VR 466, are not present, as Mr Sheales pointed out, which I accept. But each case that comes before the Court, in particular in regard to culpable driving cases, is necessarily individual: here, as I have determined, it was the speed and position of the cars which combined to create such lethal circumstances over a distance of some three to four kilometres, where at any time such an accident could have occurred. The persons at risk by such behaviour were not only the three persons in those two cars, but all the drivers present on the highway in their vicinity during such driving.
15 It is also appropriate to bear in mind the words of the Court of Appeal in R v Guariglia [2001] VSCA 27, [14], where Winneke P said:
“… In one sense the absence of an explanatory factor such as alcohol serves to make the course of conduct worse because it can only serve to confirm the view that the conduct was the product of a wilful disregard for the road laws and the safety of those using the highway. … .”
16 As I have found, I am not satisfied, on the balance of probabilities, that Mr Beardsmore was complicit, as I am unable to determine which scenario as to the manner of driving of those two cars applied. I refer to the test and principles set out in R v Cowden (2006) 166 A Crim R 318. Equally, I cannot conclude, despite evidence to such effect, beyond reasonable doubt, that Mr George was pursuing Mr Beardsmore’s car and Mr Beardsmore was seeking to escape such. To so conclude, as a matter of aggravation, against Mr George, I would have to be satisfied beyond reasonable doubt.
17 Hence, as determined in Cowden at paragraphs [25] and [26], I proceed as to sentencing on the basis that Mr Beardsmore was not complicit.
18 The Prosecutor called for a condign period of immediate imprisonment.
19 The Prosecutor also supplied the Court with Sentencing Snapshot No.173. While the principal sentence of imprisonment ranged from three (3) years to 10 years and 6 months, the median term of imprisonment therein was six (6) years with the median minimum period to serve before being eligible for parole being four (4) years. As the Court of Appeal said in R v Hasan [2010] VSCA 352, they are just that, snapshots. In that case at [42]-[54] the Court of Appeal details a series of matters to be considered by a Judge in determining a sentence in an appropriate case.
20 While Mr George’s priors are not in the league of these two offences, and during the plea were described by Mr Sheales as minor, upon analysis, it is important to note that he has priors for speeding in 2013 and 2005, and on three occasions in 1987 where he was convicted of speeding on three separate occasions, together with careless driving. The prisoner lost his licence as a result of such driving on three occasions; in 2005 and twice in 1987. It is appropriate to note that in 1987, he was only twenty-one. However, subsequently, in May of 1993, he was given an eight-month suspended gaol sentence for recklessly causing injury. In the context, while relatively minor as described by Mr Sheales when looked at in totality, albeit going back some years, all of these prior offences augured, or bode, unwell for Mr George’s driving future which, unfortunately, has come to pass.
21 The Prosecutor tendered Victim Impact Statements as part of the trial. Insofar as Mr Hay was concerned, there were eight Victim Impact Statements tendered and insofar as Mr Beardsmore, there were seven tendered. All of these fifteen statements, but for Mrs Beardsmore, were read by the Learned Prosecutor. Mrs Beardsmore read her statement to the Court.
22 In hearing those statements from family and re-reading the same, one obtains a comprehension of all the pain and loss caused as evidenced in these statements, which again graphically illustrates the consequences of such criminal behaviour.
23 Based only on the objective facts and criminality of the driving by Mr George, while I accept from Mr Sheales that there are cases where the driving is even more flagrant, I find upon objective analysis of Mr George’s crimes, that the Prosecutor is correct in calling for a condign punishment of immediate imprisonment. In terms as set out in Ibbs v R (1987) 163 CLR 447 at 452, in considering the criminality in this matter on the scale of heinousness, I classify such as being between the midpoint and the highpoint on such scale.
24 I am required by Statute and Common Law to also take into account subjective factors, in the sentencing synthesis before I sentence Mr George. The first aspect, which I accept, is that the jailing of Mr George will cause him personal distress and make his imprisonment more arduous than that which would be served by the normal member of the public. I accept that Mr George is a dedicated stepfather to his wife’s son, Seth, who is eleven, and his daughter, Emmalia, who is seven. Both are afflicted by high-end autism and Emmalia also with an eating condition. I accept that the contemplation of his own actions, and what they have wrought upon his wife and, in particular, his son and daughter, will cause him anguish while in jail. I accept that such will have even more impact upon him when he considers that such was brought about all of his own gross negligence.
25 As described in Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, [20], such is a conventional issue of mitigation, which I take into account in this matter.
26 I also accept that as a result of an earlier motorcar accident in 1984, the physical injuries to Mr George’s legs (Exhibit 5 of Professor Donnan, Orthopaedic Surgeon), the Post-Traumatic Stress Disorder emanating therefrom and the chronic pain of which he suffers, will also impact upon him while in jail.
27 In this regard, I have read the report of the pain management counsellor, Tassioulas, Exhibit 4, the report of Mr George’s GP Dr Kumar, Exhibit 3, and the report of the psychologist, Mr Newton, Exhibit 1, which concludes that Mr George is suffering from anxiety, due not only to the 1984 accident but to the circumstances of which I am sentencing upon, and indeed the legal process, and will suffer consequently additional trauma by being jailed. I also note Mr McCracken’s report in this regard (Exhibit 2).
28 The additional report of the psychiatrist, Dr Sullivan (Exhibit 7), of 15 August 2016 tendered today confirms the views of Mr Newton as to the impact upon Mr George of a jail sentence. It is noted however that Dr Sullivan confirms that there is no cognitive impairment or overt Personality Disorder, psychosis or Bipolar Affective Disorder suffered by Mr George [38]; however, he did confirm, the opinion that incarceration will weigh heavily upon him due to the Mood Disorder brought about by Post-Traumatic Stress Disorder and Depression and ongoing distress, which is likely to persist. Mr Sullivan noted an increased risk of self-harm while in jail and the need for anti-depressant medication for his Post-Traumatic Stress Disorder and Depression.
29 As I have said, I accept that such matters of mitigation as detailed in [23] - [28] need to be taken into account.
30 Mr Sheales also called Mrs George as to the condition of Seth and Emmalia in a submission which asked the Court to accept that the impact Mr George’s incarceration would render exceptional hardship upon the family, to the degree as detailed in Markovic.
31 The difficulty in cases of extreme criminality, as here, was illustrated by Winneke P in R v Pannucio [1998] VSC 300 (unreported, VSC, 4 May 1998), when he said, at paragraph [13]:
“It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.”
32 Mr Sheales submitted, given the seriousness of the crimes, that it was accepted that Mr George must face immediate imprisonment. Mr Sheales, however, submitted to the Court that if the Court found exceptional circumstances, then together with the other matters put in the plea by way of subjective factors in his client’s favour, such could be demonstrated by way of the imposition of a much shorter than usual time to be served before being eligible for parole.
33 Mr George’s wife, Mrs Nicole George, was called to give evidence insofar as the exceptional circumstances matter was concerned. She is aged thirty-eight. She runs a successful company by way of event management and supply of cocktails. She is university educated, has a son, Seth, from a previous relationship, who is now aged thirteen and has been diagnosed with high-end autism, such diagnosis having been made when he was six years old. Seth has a permanent school aide provided to him. She also gave evidence of her daughter, Emmalia, who was seven, and also apparently diagnosed with high-end autism from the age of two years and three months. Emmalia also has an aide at school, and suffers from concerning food allergies.
34 Each of the children require yearly visits to a paediatric surgeon to authorise the provision of aids for their education. Confirmation of such conditions was received by the Court today being insofar as Seth is concerned, a report from Professor Rosengarten dated 1 August 2016 (Exhibit 12) and a psychological assessment dated 7 May 2011 by Dr Chau (Exhibit 9), and in regard to Emmalia, a further report from Professor Rosengarten dated 1 August 2016 (Exhibit 11), together with a speech pathologist’s report by Ms Candy Lee, undated, but approximate to be in 2011 (Exhibit 10).
35 All of such reports, and indeed the evidence of Mrs George, spoke to the care that the prisoner has provided to the children. He has been particularly supportive of Seth and helps out in assisting the feeding of Emmalia, which sometimes can take in the order of an hour-and-a-half for her to eat a meal. Mr George’s assistance has also helped both children cope with and develop their social skills.
36 Since Mr George has been incarcerated, there have been various issues of anxiety demonstrated by both children. Indeed both children, as a result of the publicity about the deaths, have on occasions been required to be sent to their grandparent’s home in South Australia to avoid the impact of such.
37 The circumstances within the home have essentially been that the business/company conducted by Mrs George is such that she has become the primary breadwinner and person responsible for the finances of the family. Her major issues have been to find carers for the family when Mr George has not been capable, and indeed on her evidence, when Mr George had a period suffering from depression when he could hardly get out of bed, and she was required to hire an au pair to care for the children, so that she could continue with her work and business.
38 Subsequent to the evidence given by Mrs George at the hearing, I have received a psychologist’s report dated 29 November 2011 (Exhibit 8), in regard to her which confirms a diagnosis of Mrs George herself as having Asperger’s Syndrome. Such was provided by Danuta Bulhak-Paterson, a clinical psychologist, together with an update of 14 July of this year (Exhibit 13), which notes, insofar as Mrs George is concerned, that she has not been required to see the psychologist since the initial assessment in 2011 and that she was reportedly travelling very well. The issues have arisen for her, since incarceration of her husband, are detailed in that report. The division with Mr George assisting at the home and supporting his wife worked very well prior to his incarceration. The psychologist expresses concern as to the ability of Mrs George and the children to cope while their husband and father is incarcerated, with the major issue being for Mrs George to be able to find carers who can work with her children given their special needs while her husband is away. She has sought psychological support during this period.
39 I have closely considered these matters and I in no way underestimate the difficulties of dealing with autistic children, albeit high-end. The problems also, for Mrs George, of dealing with her daughter’s food problems cannot be underestimated. However, I find that Mrs George does have the intellectual and financial resources to cope with the care of her children while her husband is in jail. I do not find that the circumstances are such that exceptional hardship has been demonstrated. While no doubt there will be issues at home, subject to providing appropriate carers, the facts are that both children are at school and achieving well academically, albeit with the need for aides. I am not convinced, given the resources that the family has, that exceptional circumstances have been demonstrated.
40 I accept and have taken into account the strong personal support of the referees set out in Exhibit 6, being of Mr and Mrs Sanders, Mr Zunneberg, Mr and Mrs Treffers, the in-laws, and Mr Girvasi.
41 During the trial, at the end of the Prosecution case or, shortly before it was formally closed, Mr George sought to plead guilty to the offence of dangerous driving causing death in regard to both of the deaths, being an offence under s319 of the Crimes Act and a statutory alternative to the culpable driving charges pursuant to s422(a)(i) of the Crimes Act. It was not technically possible to allow that to take place, so a written admission of the elements by Mr George was tendered to the jury. The jury were instructed as to the statutory alternative should they have decided that Mr George was not guilty on either of the culpable driving charges. In the plea Mr Sheales asked me to take into account that action, as a matter of remorse. Such is not possible in regard to the charges of culpable driving, given the plea of not guilty. However, insofar as there was an acceptance of the elements of dangerous driving causing death in each case, I accept it as consistent with the remorse for the accident and consequences therefrom which has been expressed by Mr George to both family and friends. Given the deaths that the driving caused and the impact that such has made upon the families of the deceased, such concerns have been expressed by Mr George to both Dr Sullivan and Mr Newton.
42 Coming then to sentence Mr George, after having taken into account all of the above factors that I have referred to, applied the appropriate discounts which I have identified and at the same time, taking cognisance of the seriousness of these crimes and the need for a sentence which effects general deterrence, denunciation, and indeed in regard to you Mr George, considering your driving history and the gross nature of your driving which has caused these two deaths, the need for specific deterrence.
43 Would you please stand Mr George?
44 On the first charge of causing the death of Adam Beardsmore by culpable driving on 17 November 2014, you will be sentenced to a period of imprisonment of eight (8) years.
45 On the second charge of causing the death of Daniel Hay by culpable driving on 17 November 2014, you will be sentenced to a period of imprisonment of eight (8) years.
46 The base sentence will be Charge 1, and I order that four (4) years of the sentence pronounced on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. That therefore makes a total effective sentence of twelve (12) years.
47 I order that the period that you should serve prior to being eligible for parole is a period of seven (7) years and six (6) months.
48 Insofar as such sentence is concerned, you have now served by way of pre-sentence detention, the period of 58 days, which I declare to be part of this sentence, and I order that a copy of such declaration be recorded in the records of this Court.
49 Given the seriousness of the matter, I will also sign the Forensic Sample Order sought.
50 Further, pursuant to the provisions of s89(1)(c) of the Sentencing Act 1991, I cancel any licence you may hold and disqualify you from obtaining a licence for a period of ten (10) years from 18 November 2014.
51 I have signed the Disposal Order requested.
52 Do either Counsel want to raise any matter?
53 MR SHEALES: No sir.
54 MR GRANT: No thank you, Your Honour.
55 HIS HONOUR: Yes, Mr George can be taken away.
- - -
0
9
0