Director of Public Prosecutions v Gibson
[2024] VCC 1515
•3 October 2024
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02051
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN GAVIN GIBSON |
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JUDGE: | Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2024 | |
DATE OF SENTENCE: | 3 October 2024 | |
CASE MAY BE CITED AS: | DPP v Gibson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1515 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing - Culpable driving causing death
Cases Cited:DPP v Stephens [2015] VCC 1847; [2016] VSCA 121; DPP v Neethling [2009] VSCA 116; R v De Montero [2009] VSCA 255; DPP v Browne [2023] VSCA 13 and DPP v Huby [2019] VSCA 106
Sentence: 5 years imprisonment with a non-parole period of 3 years.
6AAA: 7 years 6 months with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey | Melasecca Kelly & Zayler |
HIS HONOUR:
1Damien Gavin Gibson, you have pleaded guilty to a charge of culpable driving causing death for which the maximum penalty is imprisonment for 20 years and/or a fine of 2,400 penalty units.
2You have no prior criminal convictions. The only blemish on your record arises from an infringement notice in 2010 for driving a motor vehicle with a blood alcohol concentration exceeding the prescribed limit.
3The facts relied on by the prosecution are not in dispute and are set out in a summary marked Exhibit A. They are further summarised below as follows.
4On Saturday, 11 September 2021, your wife and the deceased child’s mother planned a barbecue at your home in Rosedale. Part of the plan was for the family of the deceased to stay overnight at your home.
5At 2.00pm, the mother of the deceased dropped her older son at a birthday party in Sale and then drove to your home with the deceased and her youngest son. Her husband, the father of the deceased, was out collecting firewood for the afternoon.
6At approximately 2:30pm, the deceased arrived at your property with her mother and younger brother. When she arrived, you and your wife were at home with your five children together with another couple and their three children, one of whom was the 5 year-old male passenger in the ATV at the time of the fatal incident.
7It was a warm day and there were children in the pool when the deceased and her mother arrived. The pool was located on the opposite side of the house to the driveway and was surrounded by a deck. Shortly after arriving, the deceased joined the other children playing in the pool.
8Your wife and the other two mothers were sitting at a table near the pool and had a glass of champagne. You and the other father present were drinking beer and attempting to clean a beehive from the side of the cubby house.
9At 3:35pm, the mother of the deceased noticed the time and realised she had to collect her older son from the birthday party. As the deceased was still happily playing in the pool, her mother asked her if she was happy to stay or if she preferred to come to collect her brother. The deceased said, ‘I’m okay mum, see you soon’.
10The deceased’s mother left your property at 3.37 pm with her younger son.
11Shortly afterwards, you took 7 young children for a ride in the 2021 Polaris Ranger General 4-seater Crew Cab All-Terrain Vehicle (ATV) you had purchased from a dealer in Queensland and which had been delivered to you at your home on 23 August 2021. You drove the children from behind the sheds out into the front paddock. None of them were wearing any helmets or other protective gear. Nor were any of them wearing seat belts or other restraints.
12In the vehicle were your five children, respectively daughters aged 10, 8, 5, 4 and your son aged 2, along with the deceased girl, then aged 6, and the male son of the other couple present at the time of the rollover, then aged 5.
13Shortly before 4:06pm, while driving in the front paddock, you executed a manoeuvre which rolled the ATV onto its roof. The deceased was thrown from the ATV and was trapped under the roll bars, which came to rest on her chest.
14At 4.06pm, you rang 000 for emergency services. The other father present helped you lift the ATV and move the deceased from underneath it. At 4.16, the first ambulance arrived at your home and paramedics commenced treating the deceased.
15At approximately 4.20pm, the first police unit arrived. The ATV was resting on its roof at the eastern end of the paddock with paramedics nearby. Other children were crying and shaking nearby. They were then taken back to the house. You told one of the Police Officers that you had been “Driving around the paddock taking the kids for a drive. Turned too sharp, caught an edge and it rolled. Just from the marks there,”
16The deceased girl’s parents arrived whilst the paramedics were still performing first aid.
17At 5.29 pm, the deceased was transported by helicopter ambulance to the Royal Children’s Hospital, along with your 4 year-old daughter, who had sustained serious but non-life-threatening injuries. The deceased was pronounced dead at the hospital. The other five children were taken to the Latrobe Regional Hospital for assessment. They had sustained only minor injuries and were soon discharged.
18You were treated for a dislocated shoulder at the same hospital.
19All the children were unrestrained in the ATV and were not wearing helmets or any other safety gear.
20You were performing a tight right-hand turn when the ATV tripped on a previously made tyre mark, or rut, and rolled.
21When the vehicle overturned, the 6 year-old was ejected and effectively crushed by the rollbars of the vehicle. She sustained fatal injuries.
22The other five children were taken to the La Trobe Regional Hospital for assessment. They sustained only minor injuries and were discharged from hospital after observation.
23You were treated for a dislocated shoulder at the Latrobe Regional Hospital.
24Victim impact statements provided by the parents of the deceased child (Exhibits B and C) were read to the court. Victim impact statements of the grandparents of the deceased (Exhibits D and E) were received into evidence but not read aloud. I was also shown several earlier photographs of the deceased
25You were aged 33 years at the time of the incident. You resided with your wife and your five children at the family home in Rosedale.
26The deceased child had been in the same kinder class as your 5 year-old daughter.
27The parents of the deceased were friends of you and his wife. You had been on camping trips together.
28The parents of the 5 year-old boy who had been on the ATV when it rolled over had been friends of yours since childhood. Prior to your offending, you would speak on a daily basis. They had also met the parents of the deceased a couple of times through you and your wife.
29The ATV was a 4-seat purpose built, off-road type vehicle, which was driven from the left-hand side. The vehicle was fitted with a 2-cylinder engine coupled to an automatic transmission.
30The vehicle was equipped with three different drive modes:
· all wheel drive – in which engine power is transferred to all four wheels;
· two-wheel drive – in which engine power is transferred to both rear wheels; and
· single wheel drive – in which engine power is transferred to one rear wheel.
31The drive mode was controlled electronically by a three-position rocker type switch mounted to the vehicle dash panel and displayed on the instrument panel. At the time of the crash, the switch was found to be in the two-wheel drive position. In this mode both rear wheels are locked together and function like a solid/single axle.
32The ATV was fitted with half doors on both sides, a solid plastic roof and rollbars. Each seat was equipped with a seatbelt.
33The drivers’ seat belt buckle was fitted with an electrical switch to confirm when the seat belt was secured in the latch assembly. This was visually displayed to the driver by extinguishing the warning light on the instrument panel when the vehicle ignition is on, or the vehicle is running. Additionally, when the seat belt was not secured in the latch, if the vehicle was driven it was limited to a top speed of 20 km/hr.
34The front page of the Polaris owner’s manual supplied with the ATV contained the following warning:
35The introduction of the manual contained the following warning:
36Within the cabin of the vehicle itself there were several Safety Warning Notices displayed relating to the safe use and operation of the ATV. One of the warning plates on the vehicle advises drivers to do their part to prevent injuries including: “Do not allow careless or reckless driving”, “Do not let people drive or ride after using alcohol or drugs” and, “Do not exceed seating capacity: 4 occupants”.
37Another warning plate stated:
Fasten seat belts. Wear an approved helmet and protective gear. ALWAYS use vehicle cab nets and/or doors. Each rider must be able to sit with back against seat, feet on the floor, and hands on steering wheel or handholds. Drive responsibly. Avoid loss of control and rollovers. Avoid abrupt manoeuvres, sideways sliding, skidding or fishtailing and never do donuts. Slow down before entering a turn. Avoid hard acceleration when turning even from a stop. Plan for hills, rough terrain, ruts and other changes in traction and terrain… Rollovers have caused severe injuries and death even on flat open areas [emphasis added].
38About two weeks prior to your offending, a neighbour observed you driving the ATV alone in your front paddock performing “donuts”, which he described as “the back wheels were spinning, breaking traction and going round and round in circles”. The ATV had been delivered to you with two helmets, a service book, owner’s manual and a safety video.
39The roll-over occurred in daylight within the front paddock of your property which was entirely grassed and was secured by electric farm fencing on all sides and a double gate at the western enclose to the residential premises. It was mostly flat and covered in long green grass. There were a number of dirt mounds of differing sizes located in the paddock. It had not been raining and the paddock was dry.
40At 4:43pm, whilst still at the scene, Police conducted a Preliminary Breath Test (PBT) on you. It showed a result of 0.045 g alcohol in 210L breath (equivalent to 0.045%). The reading was subsequently interpreted by a Forensic Officer, taking into account calibration adjustment of the instrument, to be 0.056g/210L.
41You were arrested at the scene and transported by ambulance to the La Trobe Valley Hospital for treatment of your shoulder.
42On 12 September 2021, you were discharged from hospital and taken to the Sale Police Station where you were interviewed, charged and released on bail. During a recorded interview, you exercised your rights by providing ‘No comment’ responses the allegations put to you.
43Major Collision Investigation Unit detectives attended the collision scene and commenced investigations including conducting recorded walk-throughs, recordings using a drone camera and conducting a survey and 3D scan of the collision scene.
44The ATV was seized and secured temporarily in Traralgon. On 30 September 2021, it was taken to the Victoria Police Vehicle Impound Support Unit.
45A Collision Reconstructionist attached to the Forensic Services Department at the Victoria Police Forensic Services Centre, attended the scene, and conducted an analysis of the observations made and data collected. She was also present when static rollover testing was performed on the ATV on 19 October 2021.
46She examined the ATV at the collision scene whilst it was still lying on its roof. It was turned on and running. The key was in the ignition. The driver seat belt was fastened but that the remaining three seat belts were unbuckled and did not show any signs of being worn at the time of the rollover.
47A large number of circular and straight tyre marks were located at the scene. Two tyre marks led to the rest position of the ATV. It was the opinion of the Collision Reconstructionist that: These tyre marks were curved to the right and displayed evidence of tearing of the grass and removal of the top layer of grass and dirt (see Figure 5). Striations located within the tyre marks were perpendicular to the tyre mark direction of travel (Refer Figure 6). The marks were consistent in their appearance and characteristics with yaw marks left by the ATV due to an excessive steering input to the right by the driver. The outside tyre mark was made in the paddock by the rear offside tyre, while the inside mark was made by the front offside tyre. Tyre mark 1 (highlighted in Figure 5 with blue arrows), when measured from its commencement to end along its arc, was approximately 46.10m long. It commenced curving to the left before turning sharply to the right. Tyre mark 2 (highlighted in Figure 5 with yellow arrows) was approximately 7.8m long. Both tyre marks ceased approximately 2.5-2.9m west of the rest position of the ATV.
48She opined as to the cause of the collision as follows:
The speed at which a vehicle can negotiate a curved path is dependent on the radius of the path of the vehicle's centre of mass and the friction between the vehicle's tyres and the surface over which it was travelling.
On this occasion, the Polaris ATV's loss of control was caused by an intentional steering input. The result of a driver deliberately steering hard or jerking the wheel can be the cause of a vehicle entering a yaw. This action at speed can exceed the frictional resistance between the tyres and the roadway or surface that the vehicle is travelling on. If this continues uncorrected then the vehicle will begin to rotate about its centre of mass and the rear wheels will begin to track outside of the front wheels. That is, the vehicle will begin to yaw, leaving characteristic marks as identified from this scene and simulating a vehicle attempting to negotiate a bend at an excessive speed.
Based on the measurements from the yaw marks, at the commencement of yawing, the Polaris ATV was travelling about 40 km/h… At the commencement of the right- hand yaw, the Polaris was travelling at about 28km/h.
Based on static rollover testing, an off-road vehicle travelling a radius of 12 metres will be likely to roll when travelling at ~35 km/h.
As the vehicle travelled further along the mark towards the point of trip and rollover, the tyres have 'furrowed', or dug into the grass surface, which is more likely to induce a roll over event, as opposed to continuing to slide on top of the surface. Based upon the scene evidence, the Polaris has tripped and rolled on a previous tyre mark that has taken the same 's' shaped path commencing with a left-hand curve and before a second steering input to the right. It is for this reason the vehicle has rolled over at the point shown in the photographs.
49However, she could not exclude the possibility that, at the commencement of yawing, the Polaris was travelling at about 26km/h and at about 17km/h at the commencement of the right-hand yaw.
50On Monday 12 October 2021, an officer of the Police Collision Reconstruction Mechanical Investigation Unit completed a mechanical examination of the ATV. No faults or failures were identified on the vehicle that might have caused or contributed to the rollover.
51All seat belts were found to be contaminated with mud. The position of the contamination on each belt was consistent with them being in the retracted position when they were exposed to same, except for the driver’s side front seat belt.
52The driver side front belt webbing contamination was found close to the upper pivot point with the belt in the extended position and secured in the latch. The main section of the webbing, extended across the front of the seat back rest, was devoid of any contamination. This is consistent with the seat belt webbing being behind the driver at the time it would have been exposed to the contamination. There was no damage or markings on any of the seat belt components consistent with any belt being worn at the time of the collision.
53The prosecution has characterized the degree of your negligence in causing the fatal rollover as follows:
the decision to drive with seven underage passengers, all of which he had a positive duty of care over given their ages but particularly the deceased who was not one of his own, was six years of age and incapable of making decisions for herself in all the circumstances and
a) he did not have or seek permission from either of her parents to place her into the Polaris and take her for a drive;
b) the decision to drive in a circumstance where the passengers could not be restrained (because of the limitations on restraining by the vehicle itself);
c) the decision to drive without any helmets on any of the passengers;
d) the decision to drive the vehicle on deep grass, uneven soil with deep cuts due to earlier driving rather than, as earlier, the driveway;
e) the decision to drive a laden vehicle;
f) the decision to perform a sharp turn to the right after an immediately preceding turn to the left by which time his ATV had slowed down thus locking the wheels and causing the Polaris to overturn; and
g) if the Accused had not read the vehicle manual, it is a gross oversight given the fact it was provided and he was/had been on notice of the dangers of the vehicle from the interior labelling.
h) Within those decisions that were made by the Offender, an assessment of the decision-making immediately prior to or at the time of deciding to drive, is characterised by gross negligence.
i) The Accused turning his vehicle while driving at 17km/hr was grossly negligent when viewed in all the circumstances such that the nature of the driving manoeuvre must be viewed in all the circumstances.
j) The warnings in the cabin included to fasten seat belts, wear approved helmets and protective gear, ensure proper seating arrangements, not exceed seating capacity, avoid abrupt manoeuvres, slow down before entering a turn and plan for rough terrain, ruts and other changes in traction and terrain. Great care is required with these vehicles, and obviously so. The lack of care here went way beyond mere inadvertence or carelessness.
k) The high risk of death or serious injury, in all the circumstances here, is more than apparent from the warnings in the ATV’s cabin. This is a vehicle which carries a very high risk generally. That is why there are warnings. The readily visible warnings indicate that “rollovers have caused serious injuries and death even on flat open areas”.
l) If the Accused had simply driven in the manner alleged but with three others in his ATV, over the age of 12 and all buckled in and helmeted, driving on the relevant terrain and taking a sharp turn would not have carried a risk of such a high order. But that is not what happened here. Nor did the Accused simply gently move along the paddock in a straight line or a sealed, straight road/driveway/path.
54I agree with those characterisations.
55The consequences of your negligence are tragic for many closely concerned with the events of that day, no more so than the family of the deceased for whom, as the victim impact statements so eloquently speak, the death of their beloved daughter, sister and granddaughter have been and will continue to be utterly devastating.
56On 16 September 2021, an autopsy conducted by a forensic medical officer, concluded that the deceased girl’s cause of death was multiple injuries sustained in a motor vehicle incident as a passenger.
57Turning to matters personal to you. Your counsel provided me with a written outline of submissions (Exhibit 1), a bundle of 32 character references from friends, relatives, business associates and colleagues (Exhibit 2), a Prisoner Education Summary Report dated 24 July 2024 listing numerous educational programmes in which you have participated during your time in custody awaiting sentence since 8 February 2024 (Exhibit 3), Letters from Andrea McNeill, psychologist, dated respectively 8 February 2024 (Exhibit 4A) and 27 August 2024 (Exhibit 4B) detailing her professional observations and opinions derived from 41 consultations with you between 4 October 2021 and 8 February 2024 and a further 11 consultations with you since you went into custody voluntarily, a letter from your wife dated 8 September 2024 (Exhibit 5) and an undated six page letter from you addressed to me.
58It is plain from the totality of that material that, prior to the offending conduct, you had no mental impairments. Since the offence, you have developed Post Traumatic Stress Disorder, Major Depression and, more recently, Adjustment Disorder and Anxiety. Although Verdins principles are not relied on by your counsel, those impairments, coupled with your separation from your family, your consciousness of the strain and hardship imposed upon your wife and children and your palpable shame and remorse, have made, and will no doubt continue to make, serving your time in prison particularly onerous. As a major part of your shame, you have had to confront and learn to live with the irremediable lifelong effects of your offending upon your victims. Your counsel submits that these consequences, coupled with loss of friendships and community standing, constitute extra-judicial punishment. I take those matters into account.
59I also take into account the delay of just over three years between the offence and sentencing today during which the inevitability of a term of imprisonment has been hanging over your head. You have used much of that intervening period wisely to seek treatment for your mental impairments and to pursue rehabilitative education.
60The character references show that you are very highly regarded in the community in which you have grown up, worked and lived. You continue to have the support of your wife and your community. You have excellent prospects of rehabilitation.
61You have pleaded guilty to the much more serious of the two offences upon which you were Indicted. That plea acknowledges that, amongst the other elements of the offence, the circumstances of your driving fell so far short of the standard of care that a reasonable person would have observed and held such a high risk of death or serious injury, that it constitutes gross negligence. You have not contested that charge and have spared the family and friends of the deceased the stress of a trial. I regard your plea as clear support for my finding that you have a high degree of remorse. I note that it followed my sentence indication that you could expect a sentence of imprisonment for a maximum of 5 years with a non-parole period of 3 years.
62Your counsel urged me, both at the sentence indication hearing and at the hearing of your plea in mitigation, to conclude that your plea had great value and that, for sentencing purposes, the offending fell “very much at the lower end” of the spectrum of offences of culpable driving. I was referred by both parties to precedents which included my own sentencing orders in DPP v Stephens [2015] VCC 1847 and the decision of the Court of Appeal in the same matter reported at [2016] VSCA 121; DPP v Neethling [2009] VSCA 116; R v De Montero [2009] VSCA 255; DPP v Browne [2023] VSCA 13 and DPP v Huby [2019] VSCA 106. I was also referred to the Victorian sentencing statistics for culpable driving causing death and was reminded of the fact that this is a Category 2 offence under the Sentencing Act 1991 and the need to have regard to the standard sentence for this offence being imprisonment for a head sentence of 8 years. I remind myself that the precedent value of sentencing decisions for offences committed before 28 October 2018 is limited and that the court must impose a custodial order unless s 5(2H) of the Sentencing Act applies; it is common ground that it does not.
63I accept that the actual driving of the ATV in this case lacked many of the most serious features of wilful, often knowingly intoxicated, disregard for the safety of other road users that are present in many cases of culpable driving causing death that more than justify a head sentence of, or sometimes significantly more than, the standard sentence. This case did not involve danger to road users. The danger was confined to those on the ATV which included yourself and five of your own children. For all the reasons contended for by the Prosecution, the negligence involved in your decision to drive and the manner of your driving, albeit at relatively modest speed, of a relatively unfamiliar ATV, overloaded with unprotected and unrestrained young children, in breach of prominent warnings of the possible consequences of your actions, supported the charge to which you pleaded guilty. However, I am persuaded that the offending falls at the lower end of the spectrum for sentencing purposes.
64There remains a high degree of need in sentencing to give proper weight to the principles of just punishment, denunciation and general deterrence. I take into account the desirability of avoiding a crushing sentence and promoting your rehabilitation. I also take into account the immeasurable effects, both short and long term, on the family and friends of the deceased.
Sentence
65Damien Gavin Gibson, for the offence of culpable driving causing death you are convicted and sentenced to imprisonment for 5 years. The total effective sentence is imprisonment for 5 years. I fix a non-parole period of 3 years. I declare 238 days pre-sentence detention as time to be reckoned as served on the sentence I have imposed which is to be deducted administratively from the time you will be required to serve. You are disqualified from driving or holding a drivers’ licence for 2 years from today.
6AAA
66But for your plea of guilty, I would have sentenced you to imprisonment for 7 years 6 months with a non-parole period of 5 years.
Judge Maidment
3 October 2024
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