Director of Public Prosecutions v Graham
[2021] VCC 1585
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 19-02152
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL GRAHAM |
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JUDGE: | HER HONOUR JUDGE LAWSON |
WHERE HELD: | Geelong |
DATE OF HEARING: | 28 July, 5 October 2021 |
DATE OF SENTENCE: | 15 October 2021 |
CASE MAY BE CITED AS: | DPP v Graham |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1585 |
REASONS FOR SENTENCE
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Subject:
Catchwords: Criminal law – sentencing – dangerous driving causing death – driving while exceeding the prescribed concentration of drugs – Category 2 offending – s5(2H) the Court must make an order for imprisonment for a Category 2 offence committed by an adult and cannot order a combined sentencing order of imprisonment and a Community Correction Order, unless an exception in sub-s(a)-(e) can be shown – s5(2H)(e) – substantial and compelling circumstances that are exceptional and rare – combination of features relied upon – Community Correction Order imposed
Legislation Cited: s5(2H) Sentencing Act 1991
Cases Cited:Boulton v The Queen [2014] VSCA 342; King v The Queen [2012] HCA 24; Farmer v The Queen [2020] VSCA 140; Peers v The Queen [2021] VSCA 264.
Sentence: Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr McHenry (Arraignment) Mr N. Goodenough (Plea) | Abbey Hogan |
For the Accused | Mr J FitzGerald | Victoria Legal Aid (Geelong) |
HER HONOUR:
1Michael Graham, you have pleaded guilty to one charge of dangerous driving causing death and a summary charge of driving with more than the prescribed concentration of drugs in your blood.
2Mr Fitzgerald, on your behalf, appropriately acknowledged that any charge of dangerous driving is inherently serious involving as it does the death of a member of the community and it is a tragedy for all including the family, friends and associates of the deceased.
3Dangerous driving causing death has a maximum penalty of 10 years’ imprisonment and driving while exceeding the prescribed concentration of drugs – in the case of a first offence, a fine of 12 penalty units.
4Dangerous driving causing death is a Category 2 offence under the Sentencing Act 1991. Section 5(2H) of that Act therefore applies to the effect that, unless one of the exceptions applies, you must be sentenced to a sentence of imprisonment other than a combined sentence of imprisonment and Community Correction Order.
5I shall proceed to sentence you in accordance with the facts set out in the summary of the prosecution opening that was read at the plea hearing.
6You were aged 31 at the time of collision and you are now aged thirty-five.
7The deceased is Robert Morrow who was born on 17 February 1981 and he was aged 36 at the time of the collision.
8In brief, the circumstances of the collision are that on Saturday, 11 November 2017, at approximately 2:20pm, you were driving a white Toyota Landcruiser utility in a westerly direction along Barwon Terrace, South Geelong. As you approached the intersection with Bellarine Street, you were intending to turn right into Bellarine Street and head in a northerly direction. As you attempted to turn right, you failed to see an oncoming vehicle, a white Holden Commodore station wagon, travelling in an easterly direction along Barwon Terrace as a consequence of which a collision occurred.
9At the point of collision, you were required to give way to the Holden Commodore before turning right.
10The Holden Commodore station wagon had three occupants. There were two male persons seated in the front, the driver, Rodney Smith and the front seat passenger, Shane Heaver. Robert Morrow, the deceased, was wearing a seat belt and was in the back passenger’s seat. The Holden Commodore vehicle was intending to travel through the intersection and continue in an easterly direction along Barwon Terrace.
11Following the collision, the air bags deployed in the front seat area of the Holden Commodore. Both Smith and Heaver alighted from their vehicle following the collision. You and the driver of the Holden Commodore sustained minor injuries and the front seat passenger was not injured.
12However, Mr Morrow was found to be slumped forward in the rear passenger seat. He was unresponsive and had an abnormal breathing pattern. He was assisted from the vehicle and CPR was initially performed by an off-duty nurse who attended at the scene. Another off-duty nurse also arrived at the scene and assisted with chest compressions. Ambulance paramedics arrived and found Mr Morrow to be in cardiac arrest. He did not respond to chest compressions and remained unconscious.
13Mr Morrow was taken by ambulance to hospital where he remained in cardiac arrest. He was found to have had a massive right haemothorax (blood in right chest) which was drained. Emergency treatment was administered but was stopped at 3:15pm due to lack of cardiac activity and Mr Morrow was pronounced dead two minutes later.
14Police officers from Geelong Highway Patrol attended the scene following the collision and spoke with you. You confirmed that you were the driver of the Toyota Landcruiser and produced a valid Victorian driver’s licence. You told one of the police officers that you had been attempting to make a right turn into Bellarine Street when the collision occurred with the oncoming vehicle.
15Police investigations showed that both vehicles were travelling at “low speed” at the time of the collision.
16Mr Heaver told the police at the scene that he did not know how the collision occurred as the vehicle in which he was a passenger was travelling straight ahead and there was no speed involved, nor was that vehicle performing a turn.
17At the time of the collision the weather was fine and sunny, the road was dry and visibility was very good. There was no obstruction to your forward vision.
18On examination following the collision and there was damage to your vehicle’s driver’s side front corner consistent with the collision. No mechanical fault was found.
19As a result of the collision, you were required to provide a blood sample that was later analysed and found to contain 0.34 milligrams per litre of methylamphetamine (related Summary Charge 4).
20You are to be sentenced dealt in respect to the dangerous driving causing death charge on the basis that you failed to give way to the oncoming vehicle when you were attempting to turn into Bellarine Street. The dangerous driving was constituted by momentary inattention on your part.
21The prosecution does not rely upon the presence of methylamphetamine in your blood as part of the circumstances of the dangerous driving charge.
22On 16 November 2017, you attended at the Warne Ponds Police Station. You were arrested and a formal record of interview was conducted. You were fully cooperative with the police and made appropriate admissions.
23You told police that you were an experienced driver, you had been driving since the age of 18 and you were a truck driver by occupation. You said that you were driving slowly at the time of the collision. You estimated your vehicle’s speed at between 10 to 15 kilometres per hour. You could not provide an explanation for the collision.
24The context to the offending was that you had finished work for the day. You had discovered on completing your shift that you had locked your car keys in your own vehicle at the depot. You were driving from your employer’s depot in Breakwater in the work vehicle to go to a nearby hardware shop to pick up some wire to facilitate access to your vehicle. You were not in a hurry and you were driving slowly at between 10 to 15 kilometres per hour. At the moment of impact, you saw the other vehicle.
25The matter settled prior to trial following a preliminary hearing in respect to some expert evidence.
26Mr Robert Hay, who is stationed with Collision Reconstruction Unit at the Victoria Police Forensic Centre Macleod, gave evidence, and was cross-examined. He had furnished a report relating to the collision. He was asked to consider the report that had been commissioned on your behalf from Dr Shane Richardson, a collision reconstruction expert.
27Dr Richardson’s opinion was that it was highly unusual and unlikely for a seat-belted male adult, such as Mr Morrow, to be fatally injured in a collision consistent with what occurred on 11 November 2017. Mr Hay agreed with that in cross-examination on 21 July 2021.[1]
[1]Transcript (“T”) 38 and 39
28Dr Matthew Lynch, specialist forensic pathologist at the Victorian Institute of Forensic Medicine performed an autopsy upon the deceased, Mr Morrow. The cause of death was a haemothorax which was complicated by the rupture of the right atrium in the setting of a motor vehicle collision.
29Dr Lynch prepared a supplementary report because it was subsequently identified that the deceased had a congenital condition described as “Tetralogy of Fallot”.
30The condition was treated by heart surgery when the deceased was 18 months of age.
31Following surgery, the deceased had lived a normal and active life. He enjoyed good health and was fit.
32In the supplementary report, Dr Lynch confirmed that the deceased’s history of surgical correction of congenital heart disease and that he had observed adhesions between the pericardium (the sac surrounding the heart) and the heart in the deceased’s body at autopsy. Further, the deceased’s heart was noted to be enlarged.
33Dr Lynch stated that “it is possible that the adhesions between the pericardial sac and the right atrium rendered the deceased more vulnerable to damaging this area of the heart in the setting of a deceleration type injury (as occurs in the setting of a motor vehicle collision)” notwithstanding that both vehicles were travelling at low speed.
34He concluded: “…in my view [the deceased’s] heart condition, (surgically corrected Tetralogy of Fallot) is likely to have contributed to his death following the motor vehicle collision.” He was, however, unable to apportion a specific quantum of contribution to his pre‑existing heart disease and to the collision itself.
35The basis of the settlement in respect to the dangerous driving charge was that your driving was a substantial and operating cause of death of the deceased in all the circumstances. The prosecution accepts that the dangerousness of the driving was constituted by momentary inattention on your behalf.
36The tragic death of Mr Morrow has had very real consequences for his family, friends, and workmates.
37Lois Morrow, the deceased’s mother, has provided a statement to the Court in which she describes the effect of her son’s death on herself, her husband, the deceased’s brother Steven and his sisters Fiona and Susan.
38The deceased did not have any children. However, he had seven nieces and nephews who loved and admired him as he loved them.
39Their lives have been significantly impacted by his untimely death. The deceased was a person of great wit and humour who is dearly missed.
40The grief extends to his large group of friends and workmates.
41In the statement Ms Morrow says that forgiveness never comes easy. She can only assume that this crash and the consequences have weighed heavily on your life over the past four years. She is sure that you have family and friends affected as well. She states that she and her family do forgive you. She accepts that nothing can change what happened on that day in November 2017 and that she wishes you no further ill will.
42I have taken those statements into account.
Procedural history
43The offending occurred on 11 November 2017. The record of interview was conducted on 16 November 2017. There was a delay and you were not charged until 12 October 2018.
44A filing hearing and committal mention was conducted in early May of 2019.
45You were committed for trial on 28 October 2019.
46The first trial listing on 25 May 2020 was vacated due to the impact of the COVID‑19 pandemic.
47Thereafter the matter was listed in July 2021 at which time the matter resolved and you were arraigned on 29 July 2021.
Mitigating factors
48I have had regard to the mitigating features highlighted by Mr FitzGerald on your behalf.
49You are aged 35 and you do not have any prior criminal history. I accept that you are a person who is otherwise of good character.
50You grew up in a loving and supportive environment. You are the youngest of four siblings.
51Your father worked as an interstate truck driver and your mother was responsible for the care of the four children. Your father was often away with work.
52You grew up in the Grovedale area and attended school locally. You left school after completing the first term of Year 10. School was difficult as you were overweight as a young person and you were bullied throughout your schooling years. Consequently, you had little involvement in after school activities and sports.
53Currently you live with your parents and one of your older sister’s, Kelly in Grovedale. You enjoy good relationships with all the members of your family. Your father was present at the plea hearing.
54You have an excellent work history. You commenced working at McColl Transport initially in the wash bay where you worked for two years cleaning tankers and trucks. Unfortunately, you were bullied in that environment so that you then moved on to the loading bay for general freight where you worked for 18 months. You became an intrastate truck driver for McColl’s and worked in that role for about eight years. You worked long hours and were often away interstate for your work.
55It was during your time whilst working for McColl’s that you commenced using alcohol and drugs, in particular ice, as that was very much a part of the workplace culture at the time.
56You then worked for Zagame Transport and other transport businesses undertaking interstate truck driving. You were working with Bartlett’s Environmental as a truck driver when the collision occurred.
57You are now employed by “Power In You Project”, a drug rehabilitation program based in Geelong.
58In 2016/2017, you were involved in an intimate relationship with a woman who was separated from her husband. Your partner had a young child to whom you were very close. During the relationship you were able to desist from using ice and other drugs. Unfortunately, the relationship ended when your partner resumed the relationship with her estranged husband.
59Following the breakdown of the relationship you spiralled back into using ice and became very depressed. Just prior to the collision you were attempting to cease using ice and you had made an appointment for counselling with a psychologist that was scheduled for the Monday following the collision.
60After the collision you stopped working with Bartletts Environmental. Your depression and anxiety increased and correspondingly your ice use increased.
61Ultimately, in February 2018, you successfully completed a detoxification program and in April 2018 you commenced The Power In You Program. You actively engaged with the program and stopped using ice.
62You began to work for the program initially as a volunteer undertaking community services and then in January 2021 you became an employed support worker. Currently you are working 40 to 50 hours per week. You are keen to continue in your role to assist others who are struggling with addiction.
63I have had regard to the contents of the reference provided by Mr Kane Nuttall, the founder of The Power in You Project. He confirms that you have been involved with the project since 30 April 2018. You are a valued contributor to the program. He confirms that you take full responsibility for your past actions and behaviours and recognise the impacts these actions have had on yourself and others.
64Mr Nuttall describes you as being honest, cooperative, respectful and an empathetic worker.
65Currently you provide daily individual support to five participants and you also facilitate weekly addiction support groups and a range of mindfulness and life skill programs. You are keen to educate others through your shared experiences and learnings.
66You also volunteer for other community works involving raising money for local charities and you have assisted with projects involving supporting people affected by homelessness, mental health, and poverty.
67Mr Nuttall is strongly supportive of you and states that you have been and continue to be a strong and positive role model for anyone dealing with addiction.
68I have had regard to the contents of the report of Mr Jeffrey Cummins, clinical and forensic psychologist dated 20 September 2021.
69Mr Cummins confirms that following the collision you were diagnosed with an anxiety disorder with episodes of depression, secondary to illicit drug use and life circumstances. You were prescribed Seroquel and later Mirtazapine.
70He does not consider that you have a personality disorder. His opinion is that at the time of the offending you suffered symptoms of anxiety and depression which was in part related to your chronic drug use. He considered that you suffered from a Major Depressive Disorder (with anxious distress), which was of moderate severity and recurrent in type. He considers those symptoms now appear essentially to be in remission.
71Mr Cummins noted that a jail sentence would be more difficult for you to serve given the current state of your rehabilitation. He considers that you do have favourable prospects of rehabilitation and that you display considerable insight into your illicit drug using history.
72I accept his expressed opinion.
73I have taken into account in your favour that you entered a plea of guilty. You entered a plea of guilty prior to trial. I consider that this plea has real utility notwithstanding the late stage at which it was entered.
74It is accepted that a guilty plea entered during the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts were not affected by the pandemic’s effects.[2]
[2]Worboyes v The Queen [2021] VSCA 169.
75The plea is an acknowledgement of your genuine remorse and acceptance of responsibility for Mr Morrow’s death.
76Your remorse is further reflected in what you said to Mr Cummins.
77I have had regard to the long delays experienced in respect to your matter proceeding which delay has been outside your control. You have utilised the time following the collision to address your drug addiction and to regularise your life through productive activities and employment.
78You have made significant strides in curbing your drug addiction as is evidenced through four years of sobriety. You have completed Diplomas in Mental Health and Alcohol and Drug Addiction.
79I further have had regard to the contents of the character references provided by Evelyn Miller and Helen Hazellager. They both share the view that you are a person who is courteous, trustworthy, and charitable.
80Having regard to your post offence conduct, I consider that you have excellent prospects of rehabilitation and the prospect of re-offending is negligible.
81I have had regard to the objective seriousness of your offending. This is no doubt a very serious charge involving as it does the death of another member of our community. However, given the broad spectrum of cases that is represented by this inherently serious charge, I consider that your matter falls at the lowest level of seriousness.
82The gravamen of the offending is due to a momentary lapse of attention that you failed to pay proper attention to the presence of the other vehicle on the roadway before attempting to execute the right-hand turn and the low-speed collision causing the death of Mr Morrow occurred. There is no evidence of any other untoward driving on your behalf.
83I have assessed your moral culpability as being low having regard to all the circumstances of the collision and in circumstances where the death of Mr Morrow was likely contributed to by his underlying heart condition.
84In formulating the appropriate sentence, I must emphasise general deterrence, denunciation and impose just punishment. Specific deterrence is not a significant feature given your post offence conduct.
85Mr FitzGerald sought a Community Correction Order on your behalf. He seeks to rely upon s5(2H)(e) of the Act and submitted that the court ought to make a finding that, “there are substantial and compelling circumstances that are exceptional and rare and that justify” not imposing a sentence of imprisonment.
86In determining whether there are substantial and compelling circumstances under sub-s(2H)(e), the Court must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) Sentencing Act and:
b)must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and
c)must not have regard to –
i.your previous good behaviour (other than an absence of previous convictions or findings of guilt); or
ii.an early guilty plea; or
iii.prospects of rehabilitation; or
iv.parity with other sentences.
87Section 5(2I) also requires the Court in these circumstances to have regard to Parliament’s intention that in sentencing an offender for a Category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44) should ordinarily be made; and (b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
88Mr Goodenough on behalf of the Crown submitted that the statutory threshold set out in s5(2H)(e) has not been met and that the need to emphasise general deterrence dictates that a term of imprisonment to be immediately served is the appropriate sentencing disposition.
89Your case can be distinguished from those cases of dangerous driving causing death where there is a manifestation of deliberate risk-taking behaviour. This is a case where momentary inattention resulted in a manner of driving that is dangerous within the meaning of the section.
90The High Court of Australia in King v The Queen[3] constituted by French CJ, Crennan and Kiefel JJ, (as she then was), foreshadowed that there may be some cases that s319 encompasses which apart from their tragic consequences, may attract considerably less condemnation than others. Yours is such a case.
[3][2012] HCA 24.
91At paragraph [47] in relation to this issue of dangerous driving causing death the Court states:
The legislature has imposed maximum penalties which, in effect, authorise a range of dispositions capable of encompassing the variety of circumstances in which offences may be committed against s 319. That variety must be reflected in the sentences which are imposed.
As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’”
92I have had regard to the decision of Farmer v The Queen[4] where the court emphasised that within the context of s5(2H), paragraph (e), there is a residual category of limited scope. Furthermore, the Court foreshadowed in many cases given the type of offences within Category 2, a term of imprisonment will be inevitable.
[4][2020] VSCA 140.
93The Court stated within the bounds of reasonableness, whether in combination the circumstances are such as to amount a substantial and compelling circumstance that are exceptional and rare was for the Judge to determine.[5]
[5]Farmer (ibid) [51 – 53] (Maxwell P, Kaye, and Niall JJA).
94It is important that each case is considered having regard to its own facts.[6]
[6] Peers v The Queen [2021] VSCA 264.
95The Court of Appeal in Peers v The Queen emphasised the need for general deterrence in cases involving dangerous driving causing death but also stated that other sentencing principles which serve to moderate a sentence are not to be put aside as irrelevant.
96I have assessed both the objective gravity and your moral culpability for your offending as being low.
97As has been previously noted, the offence of dangerous driving causing death is a serious one.
98However, this is a case where there is a combination of features that mean I am satisfied that there are substantial and compelling circumstances that are exceptional and rare that justify not imposing a sentence of imprisonment.
99You have been assessed as being suitable for a Community Correction Order.
100I am guided by the guideline judgment in the Court of Appeal in Boulton v The Queen[7] and I note in that decision the Court confirmed in some cases, it will be appropriate to impose a Community Correction Order for relatively serious offences which would previously have attracted quite substantial terms of imprisonment.
[7][2014] VSCA 342.
101Furthermore, the Court of Appeal accepted that such an order is intrinsically punitive and depending on the length of the order and the nature and extent of the conditions imposed is capable of being highly punitive.
102It is further acknowledged that a Community Correction Order can provide substantial deterrence on account of the punitive effect of the order.
103I have already explained to you the nature of community correction and the terms that I propose to apply in respect to the charge on the indictment of dangerous driving causing death and you have provided to the court an indication that you understand the nature and effect of such an order and have given your verbal consent to that order this morning. I will make the formal orders:
104In relation to Charge 1 dangerous driving causing death charge, you will be convicted and placed on a Community Correction Order with three years’ duration to commence from today's date with a special condition that you perform 300 hours of unpaid community work.
105In relation to the charge of driving with more than the prescribed concentration of drugs in your blood, you will be convicted and fined $750.
106Pursuant to section 6AAA, but for your plea of guilty, I would have imposed a term of imprisonment of three years to serve 2 years imprisonment.
107HER HONOUR: And that concludes my formal sentencing remarks. I understand Mr Fitzgerald that your client has been provided with contact details for the Geelong Community Correctional Services and that he is aware of his obligations now that the court has formally made those orders.
108MR FITZGERALD: Yes, Your Honour and I can discuss those briefly with him after this matter and he will be able to attend the office there in Geelong.
109HER HONOUR: Okay, now Mr Goodenough there were no other ancillary orders sought as I recall.
110MR GOODENOUGH: Save and except Your Honour section 89 in respect of the Sentencing Act in respect of his licence s89 sub‑section 2(a) would apply in my submission.
111HER HONOUR: Mr McHenry didn't refer to that in his opening so s89 - - -
112MR GOODENOUGH: Sub-section 2(a) where it is a serious motor vehicle offence Your Honour as defined in section 87P and that includes in sub-s(d) of that definition s319 of the Crimes Act which is the offence before Your Honour. Section 89 sub‑section2(a) then prescribes a minimum or not less than 18 months as the drivers licence disqualification - - -
113HER HONOUR: Cancellation, okay.
114MR GOODENOUGH: And I apologise that that wasn't in the opening nor raised by me on the last occasion.
115HER HONOUR: No, it wasn't. Mr Fitzgerald, do you wish to make a submission in relation to this?
116MR FITZGERALD: Your Honour it appears to be a mandatory requirement. My submission ultimately is that given the progress that Mr Graham has made and the state of his rehabilitation that any order that Your Honour makes in respect of that ought to be kept to the minimum available.
117HER HONOUR: Okay, and as I understand it, I can back date it to 28 July when he was first before the court and arraigned. Is that correct Mr Goodenough?
118MR GOODENOUGH: I was just thinking that through Your Honour. As I understand it from that point he still had his licence. I'm not certain on that.
119HER HONOUR: Okay.
120MR GOODENOUGH: But it is not a case that the licence was taken as far as I am aware Your Honour.
121HER HONOUR: Right, okay. All right, well in the circumstances I will make a further order pursuant to section 89(2)(a) of the Sentencing Act that any licences that Mr Graham holds will be cancelled and he will be disqualified from obtaining a licence for the minimum period of 18 months commencing from today's date.
122MR GOODENOUGH: If it please the court.
123HER HONOUR: Thank you. All right. Okay, so that concludes the hearing today and I just ask you Mr Fitzgerald, do you require some time to speak with your client on the link?
124MR FITZGERALD: Your Honour that would be helpful if Your Honour would permit that. It won't take long I think but that is a big help.
125HER HONOUR: That's fine. I just want him to understand the nature of his obligations now but I do understand that this matter has been recorded and it is on the court portal and I do ask that the media outlets properly report this. On the last occasion there was a headline in the local Geelong Advertiser that suggested he was an ice driver who killed somebody and so clearly the implication being that the presence of methamphetamines in your client's blood was a causative factor in the death of Mr Morrow which is not correct and I just want that on the record.
126MR FITZGERALD: Thank you very much Your Honour.
127HER HONOUR: I don't want that repeated that misleading headline ought not be repeated. The body and the content of the reportage was correct but the headline was incorrect. All right, so that concludes the matter. We will now adjourn and everyone apart from Mr Graham and Mr Fitzgerald can leave the link. Thank you both for your assistance.
128MR GOODENOUGH: Please the court.
129MR FITZGERALD: Your Honour pleases, thank you.
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